ia  t 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

It's*   Richard  Hocker 

In  Memory  of 
Mr.  Frank  J.  lYikoff 


vnvKiv  y  v\L  1^0^^ 


A   DIGEST 


LAW  OF  EVIDENCE 


SIR  JAMES  FITZTAMES  STEPHEN,  K.C.S.I. 

Ill  , 

A  JUDGE   OF  THE    HIGH    COURT   OF  JUSTICE,    yUEEN  S 
BENCH    DIVISION 


FOURTH  ENGLISH  EDITION 


AMERICAN   EDITION 
WITH    ANNOTATIONS  AND  REFERENCES  TO   AMERICAN    CASES 

BY 

GEORGE  CHASE,  LL.B. 

PROFESSOR  OF   CRIMINAI-   LAW,    TORTS,    AND    PROCEDURE   IN   THE   LAW 
SCHOOL  OF  COLUMBIA  COLLEGE 


NEW  YORK 
PRINTED   FOR  THE  EDITOR 

1887 


Copyright,  1885,  by 
GEORGE    CHASR 


T 
$t4'5U 


EDITOR'S   NOTE. 


The  merits  of  "  Stephen's  Digest  "are  too  well  known  to 
need  repetition.  It  has  been  accepted  in  this  country,  as  well 
as  in  England,  as  a  starudard  treatise  upon  the  subject  of  evi- 
dence. The  editor  has  sought  in  this  edition  to  increase  its 
usefulness  for  American  lawyers  and  students  of  law  by  fully 
annotating  it,  so  as  to  exhibit  the  general  principles  of  the 
American  law  of  evidence  in  accordance  with  the  latest  and 
best  decisions.  The  contents  of  the  original  work  are  pre- 
served without  change,  except  that,  in  a  few  instances,  articles 
stating  special  provisions  of  English  statutes  have  been  trans- 
ferred to  the  foot-notes  or  to  the  Appendix.  These  transfers 
are  always  clearly  indicated  wherever  made.  But  no  omissions 
have  been  made,  and  the  editor's  additions  are  always  indi- 
cated by  being  enclosed  between  brackets.  It  will,  therefore, 
be  easy  to  distinguish  between  the  original  articles  and  notes 
and  those  of  this  edition.  The  extent  of  correspondence  or 
difference  between  the  English  and  the  American  law  is  thus 
made  clearly  manifest. 

The  American  cases  cited  by  the  editor  are  considerably 
more  numerous  than  the  English  citations  of  Mr.  Stephen  ; 
this  has  seemed  necessary  in  order  that  the  book  might  satis- 
factorily exhibit  the  law  of  evidence  for  the  different  States  and 
Territories,  and  thus  be  serviceable  in  all  parts  of  the  country. 

A  new  and  more  complete  index  will  be  found  in  this  edition. 

G.  C. 

New  York,  October,  1885. 


686436 


PREFACE  TO  THE  FOURTH  EDITION. 


I  HAVE  referred  in  this  Edition  to  the  cases  decided  and 
statutes  passed  since  the  pubhcation  of  its  predecessor  and 
down  to  the  end  of  March,  1881.  The  law  has  hardly  been 
altered  at  all  since  the  book  was  first  published.  Short  as  it 
is,  I  believe  it  will  be  found  to  contain  practically  the  whole  of 
the  law  on  the  subject.  Many  editions  of  it  have  been  pub- 
lished in  America. 

J.  STEPHEN. 
32  De  Vere  Gardens, 
May,  1 88 1. 


INTRODUCTION. 


In  the  years  1 870-1 871  I  drew  what  afterwards  became  the 
Indian  Evidence  Act  (Act  i  of  1872).  This  Act  began  by  re- 
pealing (with  a  few  exceptions)  the  whole  of  the  Law  of  Evi- 
dence then  in  force  in  India,  and  proceeded  to  re-enact  it  in 
the  form  of  a  code  of  167  sections,  which  has  been  in  operation 
in  India  since  Sept.  1872.  I  am  informed  that  it  is  generally 
understood,  and  has  required  little  judicial  commentary  or  ex- 
position. 

In  the  autumn  of  1872  Lord  Coleridge  (then  Attorney-Gen- 
eral) employed  me  to  draw  a  similar  code  for  England.  I  did 
so  in  the  course  of  the  winter,  and  we  settled  it  in  frequent 
consultations.  It  was  ready  to  be  introduced  early  in  the  Ses- 
sion of  1873.  Lord  Coleridge  made  various  attempts  to  bring 
it  forward,  but  he  could  not  succeed  till  the  very  last  day  of 
the  Session.  He  said  a  few  words  on  the  subject  on  the  5th 
August,  1873,  just  before  Parliament  was  prorogued.  The  Bill 
was  thus  never  made  public,  though  I  believe  it  was  ordered 
to  be  printed. 

It  was  drawn  on  the  model  of  the  Indian  Evidence  Act,  and 
contained  a  complete  system  of  law  upon  the  subject  of  Evi- 
dence. 

The  present  work  is  founded  upon  this  Bill,  though  it  differs 
from  it  in  various  respects.  Lord  Coleridge's  Bill  proposed  a 
variety  of  amendments  of  the  existing  law.  These  are  omitted 
in  the  present  work,  which  is  intended  to  represent  the  exist- 
ing law  exactly  as  it  stands.  The  Bill,  of  course,  was  in  the 
ordinary  form  of.  an  Act  of  Parliament.  In  the  book  I  have 
allowed  myself  more  freedom  of  expression,  though  I  have 
spared  no  pains  to  make  my  statements  precise  and  complete. 


INTRODUCTION. 


In  December  1875,  at  the  request  of  the  Council  of  Legal 
Education,  I  undertook  the  duties  of  Professor  of  Common 
Law,  at  the  Inns  of  Court,  and  I  chose  the  Law  of  Evidence 
for  the  subject  of  my  first  course  of  lectures.  It  appeared  to 
me  that  the  draft  Bill  which  I  had  prepared  for  Lord  Coleridge 
supplied  the  materials  for  such  a  statement  of  the  law  as  would 
enable  students  to  obtain  a  precise  and  systematic  acquaint- 
ance with  it  in  a  moderate  space  of  time,  and  without  a  de- 
gree of  labor  disproportionate  to  its  importance  in  relation  to 
other  branches  of  the  law.  No  such  work,  so  far  as  I  know, 
exists ;  for  all  the  existing  books  on  the  Law  of  Evidence  are 
written  on  the  usual  model  of  English  law-books,  which,  as  a 
general  rule,  aim  at  being  collections  more  or  less  complete  of 
all  the  authorities  upon  a  given  subject,  to  which  a  judge  would 
listen  in  an  argument  in  court.  Such  works  often  become,  un- 
der the  hands  of  successive  editors,  the  repositories  of  an  ex- 
traordinary amount  of  research,  but  they  seem  to  me  to  have 
the  effect  of  making  the  attainment  by  direct  study  of  a  real 
knowledge  of  the  law,  or  of  any  branch  of  it  as  a  whole,  almost 
impossible.  The  enormous  mass  of  detail  and  illustration  which 
they  contain,  and  the  habit  into  which  their  writers  naturally 
fall,  of  introducing  into  them  everything  which  has  any  sort  of 
connection,  however  remote,  with  the  main  subject,  make  these 
books  useless  for  purposes  of  study,  though  they  may  increase 
their  utility  as  works  of  reference.  The  fifth  edition  of  Mr. 
Taylor's  work  on  Evidence  contains  1797  royal  8vo  pages.  To 
judge  from  the  table  of  cases,  it  must  refer  to  about  gooo  judi- 
cial decisions,  and  it  cites  nearly  750  Acts  of  Parliament.  The 
'  Roscoe's  Digest  of  the  Law  of  Evidence  on  the  Trial  of  Ac- 
tions at  Nisi  Prius,'  contains  1556  closely-printed  pages.  The 
table  of  cases  cited  consists  of  ']']  pages,  one  of  which  contains 
the  names  of  152  cases,  which  would  give  a  total  of  11,704 
cases  referred  to.  There  is,  besides,  a  list  of  references  to 
statutes  which  fills  21  pages  more.  'Best's  Principles  of  the 
Law  of  Evidence,'  which  disclaims  the  intention  of  adding  to 
the  number  of  practical  works  on  the  subject,  and  is  said  to  be 


INTRODUCTION. 


intended  to  examine  the  principles  on  which  the  rules  of  evi- 
dence are  founded,  contains  908  pages,  and  refers  to  about 
1400  cases.  When  we  remember  that  the  Law  of  Evidence 
forms  only  one  branch  of  the  Law  of  Procedure,  and  that 
the  Substantive  Law  which  regulates  rights  and  duties  ought  to 
be  treated  independently  of  it,  it  becomes  obvious  that  if  a 
lawyer  is  to  have  anything  better  than  a  familiarity  with  in- 
dexes, he  must  gain  his  knowledge  in  some  other  way  than 
from  existing  books.  No  doubt  such  knowledge  is  to  be 
gained.  Experience  gives  by  degrees,  in  favorable  cases,  a 
comprehensive  acquaintance  with  the  principles  of  the  law 
with  which  a  practitioner  is  conversant.  He  gets  to  see  that  it 
is  shorter  and  simpler  than  it  looks,  and  to  understand  that  the 
innumerable  cases  which  at  first  sight  appear  to  constitute  the 
law,  are  really  no  more  than  illustrations  of  a  comparatively 
small  number  of  principles  ;  but  those  who  have  gained  knowl- 
edge of  this  kind  have  usually  no  opportunity  to  impart  it  to 
others.  Moreover,  they  acquire  it  very  slowly,  and  with  need- 
less labor  themselves,  and  though  knowledge  so  acquired  is 
often  specially  vivid  and  well  remembered,  it  is  often  frag- 
mentary, and  the  possession  of  it  not  unfrequently  renders  those 
who  have  it  sceptical  as  to  the  possibility,  and  even  as  to  the 
expediency,  of  producing  anything  more  systematic  and  com- 
plete. 

The  circumstances  already  mentioned  led  me  to  put  into  a 
systematic  form  such  knowledge  of  the  subject  as  I  had  ac- 
quired. This  work  is  the  result.  The  labor  bestowed  upon 
it  has,  I  may  say,  been  in  an  inverse  ratio  to  its  size. 

My  object  in  it  has  been  to  separate  the  subject  of  evidence 
from  other  branches  of  the  law  with  which  it  has  commonly 
been  mixed  up;  to  reduce  it  into  a  compact  systematic  form, 
distributed  according  to  the  natural  division  of  the  subject- 
matter  ;  and  to  compress  into  precise  definite  rules,  illustrated, 
when  necessary,  by  examples,  such  cases  and  statutes  as  prop- 
erly relate  to  the  subject-matter  so  limited  and  arranged.  I 
have  attempted,  in  short,  to  make  a  digest  of  the  law,  which, 


INTRODUCTION. 


if  it  were  thought  desirable,  might  be  used  in  the  preparation 
of  a  code,  and  which,  at  all  events,  will,  I  hope,  be  useful,  not 
only  to  professional  students,  but  to  every  one  who  takes  an 
intelligent  interest  in  a  part  of  the  law  of  his  country  bearing 
directly  on  every  kind  of  investigation  into  questions  of  fact, 
as  well  as  on  every  branch  of  litigation. 

The  Law  of  Evidence  is  composed  of  two  elements,  namely, 
first,  an  enormous  number  of  cases,  almost  all  of  which  have 
been  decided  in  the  course  of  the  last  loo  or  150  years,  and 
which  have  already  been  collected  and  classified  in  various 
ways  by  a  succession  of  text  writers,  the  most  recent  of  whom 
I  have  already  named  ;  secondly,  a  comparatively  small  num- 
ber of  Acts  of  Parliament  which  have  been  passed  in  the  course 
of  the  last  thirty  or  forty  years,  and  have  effected  a  highly  ben- 
eficial revolution  in  the  law  as  it  was  when  it  attracted  the  de- 
nunciations of  Bentham.  Writers  on  the  Law  of  Evidence 
usually  refer  to  statutes  by  the  hundred,  but  the  Acts  of  Par- 
liament which  really  relate  to  the  subject  are  but  few.  A 
detailed  account  of  this  matter  will  be  found  at  the  end  of  the 
volume,  in  Note  XLVIII, 

The  arrangement  of  the  book  is  the  same  as  that  of  the  In- 
dian Evidence  Act,  and  is  based  upon  the  distinction  between 
relevancy  and  proof,  that  is,  between  the  question  What  facts 
may  be  proved  ?  and  the  question  How  must  a  fact  be  proved 
assuming  that  proof  of  it  may  be  given  ?  The  neglect  of  this 
distinction,  which  is  concealed  by  the  ambiguity  of  the  word 
evidence  (a  word  which  sometimes  means  testimony  and  at 
other  times  relevancy)  has  thrown  the  whole  subject  into  con- 
fusion, and  has  made  what  is  really  plain  enough  appear  al- 
most incomprehensible. 

In  my  Introduction  to  the  Indian  Evidence  Act  published  in 
1872,  and  in  speeches  made  in  the  Indian  Legislative  Council, 
I  entered  fully  upon  this  matter.  It  will  be  sufficient  here  to 
notice  shortly  the  principle  on  which  the  arrangement  of  the 
subject  is  based,  and  the  manner  in  which  the  book  has  been 
arranged  in  consequence. 


INTRODUCTION.  xi 


The  great  bulk  of  the  Law  of  Evidence  consists  of  negative 
rules  declaring  what,  as  the  expression  runs,  is  not  evidence. 

The  doctrine  that  all  facts  in  issue  and  relevant  to  the  issue, 
and  no  others,  may  be  proved,  is  the  unexpressed  principle 
which  forms  the  centre  of  and  gives  unity  to  all  these  express 
negative  rules.  To  me  these  rules  always  appeared  to  form  a 
hopeless  mass  of  confusion,  which  might  be  remembered  by  a 
great  effort,  but  could  not  be  understood  as  a  whole,  or  re- 
duced to  system,  until  it  occurred  to  me  to  ask  the  question, 
What  is  this  evidence  which  you  tell  me  hearsay  is  not  ?  The 
expression  "  hearsay  is  not  evidence"  seemed  to  assume  that  I 
knew  by  the  light  of  nature  what  evidence  was,  but  I  perceived 
at  last  that  that  was  just  what  I  did  not  know.  I  found  that  I 
was  in  the  position  of  a  person  who,  having  never  seen  a  cat, 
is  instructed  about  them  in  this  fashion  :  "  Lions  are  not  cats 
in  our  sense  of  the  word,  nor  are  tigers  nor  leopards,  though 
you  might  be  inclined  to  think  they  were."  Show  me  a  cat  to 
begin  with,  and  I  at  once  understand  both  what  is  meant  by 
saying  that  a  lion  is  not  a  cat,  and  why  it  is  possible  to  call 
him  one.  Tell  me  what  evidence  is,  and  I  shall  be  able  to 
understand  why  you  say  this  and  that  class  of  facts  are  not 
evidence.  The  question  "  What  is  evidence?  "  gradually  dis- 
closed the  ambiguity  of  the  word.  To  describe  a  matter  of 
fact  as  "  evidence"  in  the  sense  of  testimony  is  obviously  non- 
sense. No  one  wants  to  be  told  that  hearsay,  whatever  else  it 
is,  is  not  testimony.  What  then  does  the  word  mean  ?  The 
only  possible  answer  is  :  It  means  that  the  one  fact  either  is  or 
else  is  not  considered  by  the  person  using  the  expression  to 
furnish  a  premiss  or  part  of  a  premiss  from  which  the  existence 
of  the  other  is  a  necessary  or  probable  inference — in  other 
words,  that  the  one  fact  is  or  is  not  relevant  to  the  other. 
When  the  inquiry  is  pushed  further,  and  the  nature  of  rele- 
vancy has  to  be  considered  in  itself,  and  apart  from  legal  rules 
about  it,  we  are  led  to  inductive  logic,  which  shows  that  judi- 
cial evidence  is  only  one  case  of  the  general  problem  of  science 
— namely,  inferring  the  unknown  from  the  known.     As  far  as 


INTR  OD  UCTION. 


the  logical  theory  of  the  matter  is  concerned,  this  is  an  ulti- 
mate answer.  The  logical  theory  was  cleared  up  by  Mr.  Mill. 
Bentham  and  some  other'  writers  had  more  or  less  discussed 
the  connection  of  logic  with  the  rules  of  evidence.  But  I  am 
not  aware  that  it  occurred  to  any  one  before  I  published  my 
'  Introduction  to  the  Indian  Evidence  Act '  to  point  out  in  de- 
tail the  very  close  resemblance  which  exists  between  Mr. 
Mill's  theory  and  the  existing  state  of  the  law. 

The  law  has  been  worked  out  by  degrees  by  many  genera- 
tions of  judges  who  perceived  more  or  less  distinctly  the  prin- 
ciple on  which  it  ought  to  be  founded.  The  rules  established 
by  them  no  doubt  treat  as  relevant  some  facts  which  cannot 
perhaps  be  said  to  be  so.  More  frequently  they  treat  as  irrel- 
evant facts  which  are  really  relevant,  but  exceptions  excepted, 
all  their  rules  are  reducible  to  the  principle  that  facts  in  issue 
or  relevant  to  the  issue,  and  no  others,  may  be  proved. 

The  following  outline  of  the  contents  of  this  work  will  show 
how  I  have  applied  this  principle  in  arranging  it. 

All  law  may  be  divided  into  Substantive  Law,  by  which 
rights,  duties,  and  liabilities  are  defined,  and  the  Law  of  Pro- 
cedure by  which  the  Substantive  Law  is  applied  to  particular 
cases. 

The  Law  of  Evidence  is  that  part  of  the  Law  of  Procedure 
which,  with  a  view  to  ascertain  individual  rights  and  liabilities 
in  particular  cases,  decides  : 

I.  What  facts  may,  and  what  may  not  be  proved  in  such 
cases  ; 

II.  What  sort  of  evidence  must  be  given  of  a  fact  which  may 
be  proved  ; 

III.  By  whom  and  in  what  manner  the  evidence  must  be 
produced  by  which  any  fact  is  to  be  proved. 


"  See,  e.g.,  that  able  and  interesting  book  'An  Essay  on  Circumstantial 
Evidence,'  by  the  late  Mr.  Wills,  father  of  Mr.  Alfred  Wills,  (^.C  Chief 
Baron  Gilbert's  work  on  the  Law  of  Evidence  is  founded  on  Locke's 
'  Essay,'  much  as  my  work  is  founded  on  Mill's  '  Logic' 


INTRODUCTION. 


I.  The  facts  which  may  be  proved  are  facts  in  issue,  or  facts 
relevant  to  the  issue. 

Facts  in  issue  are  those  facts  upon  the  existence  of  which  the 
right  or  hability  to  be  ascertained  in  the  proceeding  depends. 

Facts  relevant  to  the  issue  are  facts  from  the  existence  of 
which  inferences  as  to  the  existence  of  the  facts  in  issue  may 
be  drawn. 

A  fact  is  relevant  to  another  fact  when  the  existence  of  the 
one  can  be  shown  to  be  the  cause  or  one  of  the  causes,  or  the 
effect  or  one  of  the  effects,  of  the  existence  of  the  other,  or 
when  the  existence  of  the  one,  either  alone  or  together  with 
other  facts,  renders  the  existence  of  the  other  highly  probable, 
or  improbable,  according  to  the  common  course  of  events. 

Four  classes  of  facts,  which  in  common  life  would  usually  be 
regarded  as  falling  within  this  definition  of  relevancy,  are  ex- 
cluded from  it  by  the  Law  of  Evidence  except  in  certain  cases: 

1.  Facts  similar  to,  but  not  specifically  connected  with,  each 
other.     {Res  ititer  alios  actce.~) 

2.  The  fact  that  a  person  not  called  as  a  witness  has  asserted 
the  existence  of  any  fact.     [Hearsay.) 

3.  The  fact  that  any  person  is  of  opinion  that  a  fact  exists. 
[Opinion.) 

4.  The  fact  that  a  person's  character  is  such  as  to  render 
conduct  imputed  to  him  probable  or  improbable.     {Character.) 

To  each  of  those  four  exclusive  rules  there  are,  however, 
important  exceptions,  which  are  defined  by  the  Law  of  Evi- 
dence. 

II.  As  to  the  manner  in  which  a  fact  in  issue  or  relevant 
fact  must  be  proved. 

Some  facts  need  not  be  proved  at  all,  because  the  Court  will 
take  judicial  notice  of  them,  if  they  are  relevant  to  the  issue. 

Every  fact  which  requires  proof  must  be  proved  either  by 
oral  or  by  documentary  evidence. 

Every  fact,  except  (speaking  generally)  the  contents  of  a 
document,  must  be  proved  by  oral  evidence.  Oral  evidence 
IPWSt  in  every  case  be  direct,  that  is  to  say,  it  must  consist  of 


INTR  OD  UCTION. 


an  assertion  by  the  person  who  gives  it  that  he  directly  per- 
ceived the  fact  to  the  existence  of  which  he  testifies. 

Documentary  evidence  is  either  primary  or  secondary.  Pri- 
mary evidence  is  the  document  itself  produced  in  court  for 
inspection. 

Secondary  evidence  varies  according  to  the  nature  of  the 
document.  In  the  case  of  private  documents  a  copy  of  the 
document,  or  an  oral  account  of  its  contents,  is  secondary  evi- 
dence. In  the  case  of  some  public  documents,  exam.ined  or 
certified  copies,  or  exemplifications,  must  or  may  be  produced 
in  the  absence  of  the  documents  themselves. 

Whenever  any  public  or  private  transaction  has  been  re- 
duced to  a  documentary  foi-m,  the  document  in  which  it  is 
recorded  becomes  exclusive  evidence  of  that  transaction,  and 
its  contents  cannot,  except  in  certain  cases  expressly  defined, 
be  varied  by  oral  evidence,  though  secondary  evidence  may  be 
given  of  the  contents  of  the  document. 

III.  As  to  the  person  by  whom,  and  the  manner  in  which  the 
proof  of  a  particular  fact  must  be  made. 

When  a  fact  is  to  be  proved,  evidence  must  be  given  of  it  by 
the  person  upon  whom  the  burden  of  proving  it  is  imposed, 
either  by  the  nature  of  the  issue  or  by  any  legal  presumption, 
unless  the  fact  is  one  which  the  party  is  estopped  from  proving 
by  his  own  representations,  or  by  his  conduct,  or  by  his  rela- 
tion to  the  opposite  party. 

The  witnesses  by  whom  a  fact  is  to  be  proved  must  be  com- 
petent. With  very  few  exceptions,  every  one  is  now  a  compe- 
tent witness  in  all  cases.  Competent  witnesses,  however,  are 
not  in  all  cases  compelled  or  even  permitted  to  testify. 

The  evidence  must  be  given  upon  oath,  or  in  certain  ex- 
cepted cases  without  oath.  The  witnesses  must  be  first  ex- 
amined in  chief,  then  cross-examined,  and  then  re-examined. 
Their  credit  may  be  tested  in  certain  ways,  and  the  answers 
which  they  give  to  questions  affecting  their  credit  may  be  con- 
tradicted in  certain  cases  and  not  in  others. 

This  brief  statement  will  show  what  I  regard  as  constituting 


INTRODUCTION. 


the  Law  of  Evidence  properly  so  called.  My  view  of  it  ex- 
cludes many  things  which  arc  often  regarded  as  forming  part 
of  it.     The  principal  subjects  thus  omitted  are  as  follows: — 

I  regard  the  question,  What  may  be  proved  under  particular 
issues  ?  (which  many  writers  treat  as  part  of  the  Law  of  Evi- 
dence) as  belonging  partly  to  the  subject  of  pleading,  and 
partly  to  each  of  the  different  branches  into  which  the  Sub- 
stantive Law  may  be  divided. 

A  is  indicted  for  murder,  and  pleads  Not  Guilty.  This 
plea  puts  in  issue,  amongst  other  things,  the  presence  of  any 
state  of  mind  describable  as  malice  aforethought,  and  all  mat- 
ters of  justification  or  extenuation. 

Starkie  and  Roscoe  treat  these  subjects  at  full  length,  as 
supplying  answers  to  the  question.  What  can  be  proved  under 
an  issue  of  Not  Guilty  on  an  indictment  for  murder  ?  Mr. 
Taylor  does  not  go  so  far  as  this  ;  but  a  great  part  of  his  book 
is  based  upon  a  similar  principle  of  classification.  Thus 
chapters  i.  and  ii.  of  Part  II.  are  rather  a  treatise  on  pleading 
than  a  treatise  on  evidence. 

Again,  I  have  dealt  very  shortly  with  the  whole  subject  of 
presumptions.  My  reason  is  that  they  also  appear  to  me  to 
belong  to  different  branches  of  the  Substantive  Law,  and  to  be 
unintelligible,  except  in  connection  with  them.  Take  for  in- 
stance the  presumption  that  every  one  knows  the  law.  The 
real  meaning  of  this  is  that,  speaking  generally,  ignorance  of 
the  law  is  not  taken  as  an  excuse  for  breaking  it.  This  rule 
cannot  be  properly  appreciated  if  it  is  treated  as  a  part  of  the 
Law  of  Evidence.  It  belongs  to  the  Criminal  Law.  In  the 
same  way  numerous  presumptions  as  to  rights  of  property  (in 
particular  easements  and  incorporeal  hereditaments)  belong 
not  to  the  Law  of  Evidence  but  to  the  Law  of  Real  Property. 
The  only  presumptions  which,  in  my  opinion,  ought  to  find  a 
place  in  the  Law  of  Evidence,  are  those  which  relate  to  facts 
merely  as  facts,  and  apart  from  the  particular  rights  which 
they  constitute.  Thus  the  rule,  that  a  man  not  heard  of  for 
seven  years  is  presumed  to  be  dead,  might  be  equally  applicable 


INTRODUCTION. 


to  a  dispute  as  to  the  validity  of  a  marriage,  an  action  of  eject- 
ment by  a  reversioner  against  a  tenant /?/r  auter  vie,  the  ad- 
missibility of  a  declaration  against  interest,  and  many  other 
subjects.  After  careful  consideration,  I  have  put  a  few  pre- 
sumptions of  this  kind  into  a  chapter  on  the  subject,  and  have 
passed  over  the  rest  as  belonging  to  different  branches  of  the 
Substantive  Law. 

Practice,  again,  appears  to  me  to  differ  in  kind  from  the 
Law  of  Evidence.  The  rules  which  point  out  the  manner  in 
which  the  attendance  of  witnesses  is  to  be  procured,  evidence 
is  to  be  taken  on  commission,  depositions  are  to  be  authenti- 
cated and  forwarded  to  the  proper  officers,  interrogatories  are 
to  be  administered,  &c.,  have  little  to  do  with  the  general 
principles  which  regulate  the  relevancy  and  proof  of  matters 
of  fact.  Their  proper  place  would  be  found  in  codes  of  civil 
and  criminal  procedure.  I  have  however  noticed  a  few  of  the 
most  important  of  these  matters. 

A  similar  remark  applies  to  a  great  mass  of  provisions  as  to 
the  proof  of  certain  particulars.  Under  the  head  of"  Public 
Documents,"  Mr.  Taylor  gives  amongst  other  things  a  list  of 
all,  or  most,  of  the  statutory  provisions  which  render  certifi- 
cates or  certified  copies  admissible  in  particular  cases. 

To  take  an  illustration  at  random,  section  1458  begins  thus: 
"  The  registration  of  medical  practitioners  under  the  Medical 
Act  of  1858,  may  be  proved  by  a  copy  of  the  '  Medical  Regis- 
ter,' for  the  time  being,  purporting,"  &c.  I  do  not  wish  for  a 
moment  to  undervalue  the  practical  utility  of  such  information, 
or  the  industry  displayed  in  collecting  it ;  but  such  a  provision 
as  this  appears  to  me  to  belong  not  to  the  Law  of  Evidence, 
but  to  the  law  relating  to  medical  men.  It  is  matter  rather 
for  an  index  or  schedule  than  for  a  legal  treatise,  intended  to 
be  studied,  understood,  and  borne  in  mind  in  practice. 

On  several  other  points  the  distinction  between  the  Law  of 
Evidence  and  other  branches  of  the  law  is  more  difficult  to 
trace.  For  instance,  the  law  of  estoppel,  and  the  law  relating 
to  the  interpretation  of  written  instruments,  both  run  into  the 


INTRODUCTION. 


Law  of  Evidence.  I  have  tried  to  draw  the  line  by  deahng  in 
the  case  of  estoppels  with  estoppels  in  pais  only,  to  the  exclu- 
sion of  estoppels  by  deed  and  by  matter  of  record,  which  must 
be  pleaded  as  such  ;  and  in  regard  to  the  law  of  written  instru- 
ments by  stating  those  rules  only  which  seemed  to  me  to  bear 
directly  on  the  question  whether  a  document  can  be  supple- 
mented or  explained  by  oral  evidence. 

The  result  is  no  doubt  to  make  the  statement  of  the  law 
much  shorter  than  is  usual.  I  hope,  however,  that  competent 
judges  will  find  that,  as  far  as  it  goes,  the  statement  is  both 
full  and  correct.  As  to  brevity,  I  may  say,  in  the  words  of 
Lord  Mansfield  : — "  The  law  does  not  consist  of  particular 
cases,  but  of  general  principles  which  are  illustrated  and  ex- 
plained by  those  cases."  ' 

Every  one  will  express  somewhat  differently  the  principles 
which  he  draws  from  a  number  of  illustrations,  and  this  is  one 
source  of  that  quality  of  our  law  which  those  who  dislike  it  de- 
scribe as  vagueness  and  uncertainty,  and  those  who  like  it  as 
elasticity.  I  dislike  the  quality  in  question,  and  I  used  to  think 
that  it  would  be  an  improvement  if  the  law  were  once  for  all 
enacted  in  a  distinct  form  by  the  Legislature,  and  were  defi- 
nitely altered  from  time  to  time  as  occasion  required.  For 
many  years  I  did  my  utmost  to  get  others  to  take  the  same 
view  of  the  subject,  but  I  am  now  convinced  by  experience 
that  the  unwillingness  of  the  Legislature  to  undertake  such  an 
operation  proceeds  from  a  want  of  confidence  in  its  power  to 
deal  with  such  subjects,  which  is  neither  unnatural  nor  un- 
founded. It  would  be  as  impossible  to  get  in  Parliament  a 
really  satisfactory  discussion  of  a  Bill  codifying  the  Law  of  Ev- 
idence as  to  get  a  committee  of  the  whole  House  to  paint  a 
picture.  It  would,  I  am  equally  well  satisfied,  be  quite  as  diffi- 
cult at  present  to  get  Parliament  to  delegate  its  powers  to  per- 
sons capable  of  exercising  them  properly.  In  the  meantime 
the  Courts  can  decide  only  upon  cases    as  they  actually  oc- 


'  R.  V.  Bcntbrid^e,  3  Doug.  332, 


INTRODUCTION. 


cur,  and  generations  may  pass  before  a  doubt  is  set  at  rest  by 
a  judicial  decision  expressly  in  point.  Hence,  if  anything 
considerable  is  to  be  done  towards  the  reduction  of  the  law 
to  a  system,  it  must,  at  present  at  least,  be  done  by  private 
writers. 

Legislation  proper  is  under  favorable  conditions  the  best 
way  of  making  the  law,  but  if  that  is  not  to  be  had,  indirect 
legislation,  the  influence  on  the  law  of  judges  and  legal  writers 
who  deduce,  from  a  mass  of  precedents,  such  principles  and 
rules  as  appear  to  them  to  be  suggested  by  the  great  bulk  of 
the  authorities,  and  to  be  in  themselves  rational  and  conven- 
ient, is  very  much  better  than  none  at  all.  It  has,  indeed, 
special  advantages,  which  this  is  not  the  place  to  insist  upon. 
I  do  not  think  the  law  can  be  in  a  less  creditable  condition  than 
that  of  an  enormous  mass  of  isolated  decisions,  and  statutes 
assuming  unstated  principles  ;  cases  and  statutes  alike  being 
accessible  only  by  elaborate  indexes.  I  insist  upon  this  be- 
cause I  am  well  aware  of  the  prejudice  which  exists  against  all 
attempts  to  state  the  law  simply,  and  of  the  rooted  belief 
which  exists  in  the  minds  of  many  lawyers  that  all  general 
propositions  of  law  must  be  misleading,  and  delusive,  and  that 
law  books  are  useless  except  as  indexes.  An  ancient  maxim 
says  "  Omnis  definitio  injureperiailosa."  Lord  Coke  wrote, 
"It  is  ever  good  to  rely  upon  the  books  at  large  ;  for  many 
times  compendia  sunt  dispendia,  diVid  Melius  est  petere  fontes 
guam  sectari  rivulos."  Mr.  Smith  chose  this  expression  as  the 
motto  of  his  '  Leading  Cases,'  and  the  sentiment  which  it  em- 
bodies has  exercised  immense  influence  over  our  law.  It  has 
not  perhaps  been  sufficiently  observed  that  when  Coke  wrote, 
the  "books  at  large,"  namely  the  '  Year  Books'  and  a  very 
few  more  modern  reports,  contained  probably  about  as  much 
matter  as  two,  or  at  most  three,  years  of  the  reports  pub- 
lished by  the  Council  of  Law  Reporting  ;  and  that  the  com- 
pendia (such  books,  say,  as  Fitzherbert's  '  Abridgment')  were 
merely  abridgments  of  the  cases  in  the  '  Year  Books '  clas- 
sified  in   the  roughest    possible    manner,  and  much   inferior 


INTR  OD  UCTION. 


both  in  extent  and  arrangement  to  such  a  book  as  Fisher's 
'Digest." 

In  our  own  days  it  appears  to  me  that  the  irne/onies  are  not 
to  be  found  in  reported  cases,  but  in  the  rules  and  principles 
which  such  cases  imply,  and  that  the  cases  themselves  are  the 
rivjtli,  the  following  of  which  is  a  dispcndium.  My  attempt 
in  this  work  has  been  emphatically /tY^rt'y<?«/^j,  to  reduce  an 
important  branch  of  the  law  to  the  form  of  a  connected  sys- 
tem of  intelligible  rules  and  principles. 

Should  the  undertaking  be  favorably  received  by  the  pro- 
fession and  the  public,  I  hope  to  apply  the  same  process  to 
some  other  branches  of  the  law  ;  for  the  more  I  study  and 
practise  it,  the  more  firmly  am  I  convinced  of  the  excellence 
of  its  substance  and  the  defects  of  its  form.  Our  earlier  writ- 
ers, from  Coke  to  Blackstone,  fell  into  the  error  of  asserting 
the  excellence  of  its  substance  in  an  exaggerated  strain,  whilst 
they  showed  much  insensibility  to  defects,  both  of  substance 
and  form,  which  in  their  time  were  grievous  and  glaring. 
Bentham  seems  to  me  in  many  points  to  have  fallen  into  the 
converse  error.  He  was  too  keen  and  bitter  a  critic  to  recog- 
nise the  substantial  merits  of  the  system  which  he  attacked  ; 
and  it  is  obvious  to  me  that  he  had  not  that  mastery  of  the  law 
itself  which  is  unattainable  by  mere  theoretical  study,  even  if 
the  student  is,  as  Bentham  certainly  was,  a  man  of  talent,  ap- 
proaching closely  to  genius. 

During  the  last  twenty-five  years  Bentham's  influence  has  to 
some  extent  declined,  partly  because  some  of  his  books  are 
like  exploded  shells,  buried  under  the  ruins  which  they  have 
made,  and  partly  because  under  the  influence  of  some  of  the 


■  Since  the  beginning  of  1865  the  Council  has  published  eighty-six  vol- 
umes of  Reports.  The  Year  Books  from  1307-1535,  228  years,  would  fill 
not  more  than  twenty-five  such  volumes.  There  are  also  ten  volumes 
of  Statute?S  since  1865  (May  1876).  There  are  now  (Feb.  1877)  at  least 
ninety-three  volumes  of  Reports  and  eleven  volumes  of  Statutes.  I  have 
not  counted  the  exact  number  in  existence  in  1881,  but  the  ninety-three 
volumes  must  have  grown  to  120  or  more. 


INTRODUCTION. 


most  distinguished  of  living  authors,  great  attention  has  been 
directed  to  legal  history,  and  in  particular  to  the  study  of  Ro- 
man Law.  It  would  be  difficult  to  exaggerate  the  value  of 
these  studies,  but  their  nature  and  use  is  liable  to  be  misun- 
derstood. The  history  of  the  Roman  Law  no  doubt  throws 
great  light  on  the  history  of  our  own  law;  and  the  comparison 
of  the  two  great  bodies  of  law,  under  one  or  the  other  of  which 
the  laws  of  the  civilised  world  may  be  classified,  cannot  fail  to 
be  instructive  ;  but  the  history  of  bygone  institutions  is  valua- 
ble mainly  because  it  enables  us  to  understand,  and  so  to  im- 
prove existing  institutions.  It  would  be  a  complete  mistake  to 
suppose  either  that  the  Roman  Law  is  in  substance  wiser  than 
our  own,  or  that  in  point  of  arrangement  and  method  the  Insti- 
tutes and  the  Digest  are  anything  but  warnings.  The  pseudo- 
philosophy  of  the  Institutes,  and  the  confusion  of  the  Digest, 
are,  to  my  mind,  infinitely  more  objectionable  than  the  absence 
of  arrangement  and  of  all  general  theories,  good  or  bad,  which 
distinguish  the  Law  of  England. 

However  this  may  be,  I  trust  the  present  work  will  show  that 
the  law  of  England  on  the  subject  to  which  it  refers  is  full  of 
sagacity  and  practical  experience,  and  is  capable  of  being 
thrown  into  a  form  at  once  plain,  short,  and  systematic. 

I  wish  in  conclusion,  to  direct  attention  to  the  manner  in 
which  I  have  dealt  with  such  parts  of  the  Statute  Law  as  are 
embodied  in  this  work.  I  have  given,  not  the  very  words  of 
the  enactments  referred  to,  but  what  I  understand  to  be  their 
effect,  though  in  doing  so  I  have  deviated  as  little  as  possible 
from  the  actual  words  employed.  I  have  done  this  in  order  to 
make  it  easier  to  study  the  subject  as  a  whole.  Every  Act  of 
Parliament  which  relates  to  the  Law  of  Evidence  assumes  the 
existence  of  the  unwritten  law.  It  cannot,  therefore,  be  fully 
understood,  nor  can  its  relation  to  other  parts  of  the  law  be 
appreciated,  till  the  unwritten  law  has  been  written  down  so 
that  the  provisions  of  particular  statutes  may  take  their  places 
as  parts  of  it.  When  this  is  done,  the  Statute  Law  itself  admits 
of,  and  even  requires,  very  great  abridgment.     In  many  cases 


INTRODUCTION. 


the  result  of  a  number  of  separate  enactments  may  be  stated  in 
a  line  or  two.  For  instance,  the  old  Common  Law  as  to  the 
incompetency  of  certain  classes  of  witnesses  was  removed  by 
parts  of  six  different  Acts  of  Parliament — the  net  result  of 
which  is  given  in  five  short  articles  (106-1 10). 

So,  too,  the  doctrine  of  incompetency  for  peculiar  or  defective 
religious  belief  has  been  removed  by  many  different  enactments 
the  effect  of  which  is  shown  in  one  article  (123). 

The  various  enactments  relating  to  documentary  evidence 
(see  chap  x.)  appear  to  me  to  become  easy  to  follow  and  to 
appreciate  when  they  are  put  in  their  proper  places  in  a  gen- 
eral scheme  of  the  law,  and  arranged  according  to  their  sub- 
ject-matter. By  rejecting  every  part  of  an  Act  of  Parliament 
except  the  actual  operative  words  which  constitute  its  addition 
to  the  law,  and  by  setting  it  (so  to  speak)  in  a  definite  state- 
ment of  the  unwritten  law  of  which  it  assumes  the  existence,  it 
is  possible  to  combine  brevity  with  substantial  accuracy  and 
fulness  of  statement  to  an  extent  which  would  surprise  those 
who  are  acquainted  with  Acts  of  Parliament  only  as  they  stand 
in  the  Statute  Book.'  At  the  same  time  I  should  warn  any  one 
who  may  use  this  book  for  the  purposes  of  actual  practice  in  or 
out  of  court,  that  he  would  do  well  to  refer  to  the  very  words  of 
the  statutes  embodied  in  it.  It  is  very  possible  that,  in  stating 
their  effect  instead  of  their  actual  words,  I  may  have  given  in 
some  particulars  a  mistaken  view  of  their  meaning. 

Such  are  the  means  by  which  I  have  endeavored  to  make  a 
statement  of  the  Law  of  Evidence  which  will  enable  not  only 
students  of  law,  but  I  hope  any  intelligent  person  who  cares 
enough  about  the  subject  to  study  attentively  what  I  have 
written,  to  obtain  from  it  a  knowledge  of  that  subject  at  once 
comprehensive   and   exact — a  knowledge  which  would  enable 


'  Twenty  articles  of  this  work  represent  all  that  is  material  in  the  ten 
Acts  oi  Parliament,  containing  sixty-six  sections,  which  have  been  passed 
on  the  subject  to  which  it  refers.  For  the  detailed  proof  of  this,  see 
Note  XL VIII. 


INTRODUCTION. 


him  to  follow  in  an  intelligent  manner  the  proceedings  of  Courts 
of  Justice,  and  which  would  enable  him  to  study  cases  and  use 
text-books  of  the  common  kind  with  readiness  and  ease.  I  do 
not  say  more  than  this.  I  have  not  attempted  to  follow  the 
matter  out  into  its  minute  ramifications,  and  I  have  avoided 
reference  to  what  after  all  are  little  more  than  matters  of  curi- 
osity. I  think,  however,  that  any  one  who  makes  himself 
thoroughly  acquainted  with  the  contents  of  this  book,  will  know 
fully  and  accurately  all  the  leading  principles  and  rules  of  evi- 
dence which  occur  in  actual  practice. 

If  I  am  entitled  to  generalise  at  all  from  my  own  experience, 
I  think  that  even  those  who  are  already  well  acquainted  with 
the  subject  will  find  that  they  understand  the  relations  of  its 
different  parts,  and  therefore  the  parts  themselves  more  com- 
pletely than  they  otherwise  would,  by  being  enabled  to  take 
them  in  at  one  view,  and  to  consider  them  in  their  relation  to 
each  other. 


TABLE    OF   CASES    CITED. 


Abbath  v.  Railway  Co 177 

Abbott  V.  People 14 

"       z'.  Rose 160 

Abeel  v.  Van  Gelder 42 

Abercrombie  v.  Sheldon 23 

Abington  v.  Duxbury 184 

Abouloff  V.  Oppenheimer.    100,  262 
Acklen's  Excr.  v.  Hickman.  68,  239 

Adae  v.  Zangs 238,  239 

Adair  v.  England 160 

Adams  v.  Davidson 43 

V.  Greenwich  Ins.  Co..  234 
V.  H.  &  St.  J.  R.  Co  . .       7 

V.  Lloyd 206 

V.  Merritt 219 

V.  O'Connor 133 

V.  People 15,  loi 

V.  Pittsburg  Ins.  Co.  13,  213 

V.  Porter 207 

V.  Wheeler 230 

Adee  v.  Howe 47 

Adie  V.  Clark 168 

A.  G.  V.  Bryant 200 

A.  G.  V.  Hitchcock 227,  228 

Agan  V.  Hey 199 

Agricultural  Ins.  Co.  v.  Keeler    48 

Ahem  f .  Goodspeed 49 

Aikin  v.  Martin 140,  221 

Akers  v.  Demond 219 

Alabama,  etc.  R.  Co.  v.  Hawk..       7 
Albert  v.  Nor.  Central  R.  Co..     27 


Alden  v.  Goddard 203 

Alderson  v.  Bell 119 

Aldous  V.  Cornwall 158,  i6o 

Alexander  v.  Cauldwell 45 

"  V.  Chamberlain 75 

"  z/.  Comm 14 

Alger  V.  Andrews 43 

Alison  V.  Coram 61 

Alivon  V.  Furnival 137 

Allan  V.  Dundas 85 

Allen  V.  Furbish 163 

"      t'.  Killinger 51 

"      V.  Pink 166 

'■      V.  Sowerby 163 

Alley  V.  Nott 87 

AMgoodv.  Blake 268 

Alner  v.  George 256 

Alpin  V.  Morton 31 

Alston  z".  State 58 

Alter  V.  Berghaus 64 

American  Bible  Soc.  v.  Pratt..   168 
American  Life  Ins.  Co.  v.  Rose- 

nagle 74,  76.  104. 136.  i43 

American  Nat.  Bk.  v.  Bushey..   119 
Amer.   Underwriters'   Ass'n   v. 

George 130 

Ames  V.  Colburn 160 

Amherst  Bk.  v.  Root 109 

Amidon  v.  Hosley 233 

Amoskeag  Co.  v.  Head 5 

Anderson  v.  Edwards 64 

"         f.  Rome,  etc.  R. Co..     45 


TABLE  OF  CASES  CITED. 


PAGE 

Anderson  v.  State 58 

"         V.  Weston 154 

Andrews  v,  ^tna  Ins.  Co 188 

"        z/.  Knox  Co 124 

"        V.  Ohio,  etc.  R.  Co. . .  208 

"        V.  Townshend 207 

Angell  V.  Duke 166 

Angle  V.  Life  Ins.  Co 157,  160 

Angus  V.  Dalton 185,  186 

Annesly  v.  Anglesea 205 

Anon 208 

Anonymous 217 

Anthony  v.  Harrison 154,  162 

Appel  f .  Byers 171 

Appleton  V.  Braybrook 266 

Armour  t/.  Mich.  Cent.  R.  Co.   193 

Armoury  v.  Delamirie 180 

Arms  f.  Middleton 63 

Armstrong  v.  People 211 

"  z'.  U.  S 80,  121 

Arnd  v.  Amling 195 

Arthur  v.  James 52 

Artz  V.  Railroad  Co 230 

Ashcraft  v.  Chapman 121 

Ashland  v.  Marlborough 32 

Atchison,   etc.   R.  Co.  v.  Stan- 
ford. .27,  222 

V.  Thul.   128 

Atlantic  Ins.  Co.  v.  Fitzpatrick.  219 

Atwell  V.  Miller 141 

Atwood  V.  Dearborn 234 

' '        V.  Impson 233 

Audubon  v.  Excelsior  Ins.  Co. .     87 

Augusta  V.  Winslow 63 

Aurora  v.  Brown 26 

' '       V.  Cobb 223 

Austin  I'.  Holland 37,  188,  189 

"      7/,  State 223 

"       V.  Thompson 240 

Aveson  v.  Lord  Kinniard 32 

Ayers  v.  Hewett 133 

"       zj.  Weed 169 


B 

PACK 

Babcock  v.  Babcock 224 

Baccigalupo  y.  Comm 179 

Baccio  57.  People 17 

Bacon  v.  Chesney 50 

"      t'.  Frisbie 202 

Bagley  v.  McMickle 136 

Bailey  v.  Bidwell 133 

"       V.  Corliss 48 

!^.  Danforth 68 

"       f.  Johnson 137 

"       V.  Kalamazoo  Pub'g  Co.  123 

"       z^.  Woods 78 

Baird  v.  Daly 28 

"      z".  Gillett 22 

"     t^.  U.  S 86 

Baker  v.  Fehr 176,  177 

"      i^.  Gansin 7 

"      V.  Mygatt 119 

"      V.  Pike 139,  140 

' '      V.  Stackpole 46 

Balbo  V.  People 55 

Baldwin  v.  Bricker 83 

"        f.  Dow 162 

Bales  V.  State 82 

Balliett  v.  Fink 133 

Ballinger  v.  Davis 131 

Baltimore  7'.   State 123 

B.  &  O.  R.  Co.  V.  Campbell...     48 

Banfield  v.  Whipple 14 

Bank  v.  Fordyce 170 

"     V.   Kennedy 165 

Bank  of  Brighton  v.  Smith 48 

Bank    of    Hindustan,    Alison's 

Case 88 

Bank  of  Ireland  v.  Evans 272 

Bank  of  Monroe  v.  Culver 64 

Bank  of  Owego  v.  Babcock 94 

Bank  of  U.  S.  v.  Dandridge...     36 

Bank  of  Utica  v.  Hillard 208 

"              "      V.  Mersereau...  203 
Bannon  v.  People 98 


TABLE  OF  CASES  CITED, 


XXV 


1>AGE 

Barber  v.  Merriam 32 

Barker  v.  Bininger 41 

' '       V.  Blount 221 

"       I/.  Cleveland 87 

"       f.  Haskell 65 

"       V.  Kuhn  205 

Barnard  <'.  Campbell  189 

"         ^^  Kellogg 164 

Barnes  -'.  Harris 204 

Barnett  v.  Abbott 162 

Barnum  v.  Barnum 75,  iii,  219 

Baron  de  Bode's  Case 103 

Barrett  v.  Long 30 

Barrows  v.  Downs 104 

Barrs  v.  Jackson 88 

Barry  v.  Ryan 130 

Bartholomew  v.  Farwell 64 

Bartlett  v.  Boston  Gas  Co 93 

"        t'.  Tarbox 52 

Barton  v.  Dawes 165 

"       V.  Kane 141 

Batdorff  z/.  Farmers'  Nat.  Bk..  226 

Bateman  v.  Bailey 18 

Bates  V.  Barber 234 

"      7'.  Spooner 86 

Bathrick  v.  Detroit  Post  Co 115 

Battles  V.  Laudenslager 115 

Bauer  v.  Indianapolis 26 

Bauerraan  v.  Radenius 256 

Baughman  v.  Baughman loi 

Baulec  v.  N.  Y.,  etc.  R.  Co. .  26,  34 

Baxendale  v.  Bennett igo 

Baxter  v.  Abbott 38 

"      V.  New  Eng.  Ins.  Co...     91 

Bayliss  v.  A.  G 171 

"       7'.  Cockcroft 127, 

Beal  V.  Nichols 221 

Beall  V.  Pearre 92 

Beaman  v.  Russell 159 

Bean  v.  Green 198 

Beatson  v.  Skene 200 

Beattie  v,  Hilliard 137 


PAGE 

I  Beckwith  v.  Phalen 187 

'  Bedford  (Duke  of)  v.  Lopes...     12 

,  Beeston's  Case 79 

Beggarly  v.  State 55 

Behrens  z'.  Germania  Ins.  Co..   176 

Belfast  Bank  v.  Harriman 160 

Bell  V.  Kennedy 160 

"     V.  McGuiness 176 

"     V.  Morrison 46 

Bellefontaine,    etc.    R.    Co.    v. 

Bailey 105 

Benedict  v.  Cowden 157 

Benjamin  v.  Smith 41 

Bennett  v.  Clemence 102 

"        z>.  Edwards 218 

Benson  v.  Lundy 43 

"        V.  Titcomb     181 

Benstine  v.  State 236 

Bergen  v.  State 77 

Berkeley  Peerage  Case 75,  260 

Berney  v.  Mitchell 77 

Berry  -'.  Raddin 12,  156 

Berryhill  v.  Kirchner no 

Best  V.  Hammond 168 

Bethlehem  v.  Watertown 88 

Bickford  v.  Cooper 86 

Biddle  v.  Bond 192 

Biesching  v.  St.  Louis  Gas  Co.  181 

Bigelow  V.  Foss 41 

"        V.  Gillott 159 

"       V.  Hall 238 

"        y.  Stilphens 158 

Bigler  v,  Reyher 205 

Bigley  v.  Williams 6 

Binck  V.  Wood 89 

Bird  V.  Bird 136 

"    V.  Comm 118 

''    V.  Hueston 67 

Birmingham  v.  Anderson 71 

Birt  V.  Barlow in 

Bischoff  V.  Wetherel 100 

Bissell  V.  Adams 46 


XXVI 


TABLE  OF  CASES  CITED. 


PAGE 

Bissell  V.  Campbell 13,  213 

' '      V.  Cornell 234 

"      I/.  Hamblin 80 

"      V.  Kellogg 93 

"      7/.  Saxton 48 

"      V.  Starr 226 

' '      V.  West 102 

Black  V.  Bachelder 161 

' '     V.  Lamb 46 

"     t'.  Woodrow 78 

Blackburn  v.  Crawfords.  .66,  75,  203 

"  V.  State 53 

Blackettv.  Royal  Exchange  Co.  170 

Blackington  v.  Johnson 221 

"  V.  Rockland 128 

Blaeser  z/.  Milwaukee  Ins.  Co.   176 

Blair  v.  Bartlett 89 

-'     V.  Blair 92 

' '     V.  Ellsworth 78 

"     V.  Pelham 128 

"     V.  Seaver 195 

Blaisdell  v.  Pray  98 

Blake  v.  Albion  Life  Assurance 

Soc 35,37 

"      z/.  People 127 

' '      V.  Sawin 132 

Blanchard  v.  Hodgkins 18 

"         V.  Steamboat  Co  ...     26 

Bleecker  v.  Johnston 220 

Bliss  V.  Brainerd 181 

' '    V.  Nichols 40 

Board   of  Trustees   v.    Nusen- 

heimer 108 

Boardman  v.  Woodman 38,  115 

Bob  V.  State 53 

Bock  V.  Weigant 229 

Bodman  v.  Amer.  Tract  Soc. . .   169 
Bogardus  v.  Trinity  Church.  .12,  81 

Boggs  V.  Taylor 168 

Bogle's  Excrs.  v.  Kreitzer 233 

Bond  V.  Fitzpatrick 43,  44 

"     «/.  State 179 


PAGB 

Bond's  Appeal 168 

Bonelli,  Goods  of 105 

Bonesteel  v.  Lynde  ...140,  141,  207 

Bonney  v.  Morrill 163 

Bonynge  v.  Field 26 

Boomer  v.  Laine 199 

Booth  f.  Cleveland  Mill  Co 107 

' '      V.  Powers 157,  160 

"     V.  Robinson 162 

Boree  v.  Danville 181 

Borst  V.  Empire 130 

Borum  v.  Fonts 204 

Boston  f.  Richardson. .  .12,  156,  250 

''      z'.  Worthington 94 

Boston,  etc.  Co.  v.  Hanlon..  .72,  82 

B.  &  A.  R.  Co.  V.  Shanly 177 

B.  &  W.  R.  Co.  V.  Dana 138 

Boswell  V.  State  . . . , 179 

Bosworth  V.  Vandewalker 98 

Bottomley  f.  U.  S 28 

Bouldin  v.  Alexander 85 

Bound  V.  Lathrop 46 

Bourne  v.  Buffington 140 

Bowen  v.  Chase 42 

Bower  v.  Hoffman 165 

Bowling  v.  Hax 132 

Bowyer  v.  Schofield 92 

Boyce  v.  Cheshire  R.  Co 27 

Boylan  v.  Meeker 38 

Boyle  V.  State  .  , 82 

Boynton  v.  Boynton 141 

Boyse  v.  Rossborough 21 

Brachmann  zi.  Hall 109 

Brackett  v.  Barney 163 

Bradford  v.  Randall 155 

Bradley  v.  James 68 

"        V.  Mirick 78,  79,  222 

Bradshaw  v.  Combs 163 

Bradstreet  v.  Rich 163 

Brague  v.  Lord 194 

Brain  v.  Preece 66 

Brainard  v^  Fowler 149 


TABLE  OF  CASES  CITED. 


Brake  v.  Kimball 49 

Brandt  v.  Klein 136 

Branson  v.  Caruthers 199 

Brassington  v.  Brassington 207 

Brawley  v.  U.  S 168 

Breton  v.  Cope 131 

Brewster  v.  Doane 64 

Brick  V.  Brick 164 

Bridgeport  Ins.  Co.  v.  Wilson.     95 

Bridgewater  v.  Plymouth 201 

Brierly  v.  Miles 27 

Briggs  V,  Briggs 206 

"      V.  Rafferty 64 

"      V.  Smith 199 

Brigham  v.  Palmer 132 

Bright  V.  Young 133 

Bristow  V.  Sequeville 105 

Brittain  v.  Kinniard 97 

Britton  v.  Lorenz 204 

Broad  v.  Pitt 276 

Brobston  v.  Cahill no 

Brodhead  v.  Wiltsee 82 

Brogy  V.  Comm 77 

Brolley  v.  Lapham 155 

Bronner  v.  Frauenthal 20 

"        V.  Loomis no 

Bronson  v.  Gleason 122 

Brooks  V.  Goss 42 

Brotherton  I/.  Brotherton 218 

"  V.  People 61 

Brough  V.  Lord  Scarsdale. ...       13 

Brower  v.  Callender 43 

' '       V.  Bowers 171 

Brown,  Ex  parte 140,  208 

Brown  v.  Barnes 30 

"       f.  Brown 170 

"       z".  Cambridge 173 

"      V.Campbell 234 

"       V.  Cole 201 

"      V.  Comm.  i6,  25,  60,  77,  258 

"       V.  Evans 115 

"      v.  Everhard 164 


PAGE 

Brown  v.  Foster 205 

"      V.  Gallaudet 87 

' '       V.  Jewett 203 

"       f.  Kimball 131 

"       V.  Littlefield 139 

"       t'.  Mailler 41.50 

"       V.  Mooers 234 

"       V.  Piper 120 

"       V.  Powell  Co 192 

Browne  v.  Schofield 122 

Brownell  v.  Palmer 187 

Brubaker's  Adm'r  v.  Taylor...  230 

Bruce  f.  Nicolopulo 137 

"       I/.  Priest 115 

"       I/.  Westcott 160 

Brunsden  z'.  Humphrey 86 

Bryan  f.  Forsyth 151 

Bryce  v.  Lorillard  Ins.  Co.  165,  169 

Buffum  V.  Ramsdell 98 

Bull  V.  Loveland 207,  210 

Bullard  v.  Creditors 176 

"       V.  Pearsall 231 

Bunnell  v.  Butler 234 

Burdick  v.  Hunt 202 

"        V.  Norwich  93 

Burger  f.  Farmers'  Ins.  Co 164 

Burgess  v.  Langley 201 

Burgwin  v.  Bishop 158 

Burke  v.  Miltenberger 121 

Burlen  v.  Shannon 85,  93,  96 

Burnell  v.  Weld 147 

Burnett  v.  Smith 87 

Burney  v.  Russell 137 

Burnham  v.  Allen 178 

"         V.  Brennan 43 

"         V.  Dorr 162,  173 

"         T'.  Roberts 203 

"         z'.  Morrissey 207 

Burns  v.  State 60 

"      !<.  Thompson 173 

Burress"  Case no 

Burt  V.  Panjaud , 180 


XXVlll 


TABLE  OF  CASES  CITED. 


PAGE 

Burt  V.  Place 85 

"     I/.  Saxton 164 

"     V.  State 17 

"     V.  Winona,  etc.  R.  Co 118 

Burton  v.  Driggs 137,  138,  142 

Bush  V.  Comm 195 

' '     V.  Stowell 46 

Bussom  V.  Forsyth 76 

Buswell  V.  Lincks 19 

Butler  V.  Gale 170 

"      V.  Millett 41 

"      £».  Moore 275 

"      V.  St.  Louis  Ins.  Co....  66 

"      z/.  Watkins 28 

Button  z'.  Amer.  Tract  Soc 169 

Buxton  V.  Edwards 46 

"       V.  Somerset  Works  ...  103 

Byass  v.  Sullivan 207 


Caddy  v.  Barlow 85 

Caermarthen    R.    C.    v.    Man- 
chester R.  C 50 

Cagger  v.  Lansing 12,  86 

Cahen  v.  Continental  Ins.  Co. .   136 

Cahill  V.  Palmer 156 

Caldwell  v.  Murphy 32 

"        V.  Sigourney 46 

Calkins  v.  Hartford 26 

Call  V.  Dunning 132 

Callender  v.  Callender 52 

Calvert  v.  Flower 240 

"       ^f.  Friebus 199 

Calypso,  The 95 

Camerlin  v.  Palmer  Co 51 

Cameron  t'.  Blackman 118,  238 

"         V.  Peck 138 

Games  z*.  Crandall 75 

Campan  v.  Dubois 52 

Campbell  v.  Chace 198 


PAGE 

Campbell  v.  Comm 211 

"         V.  Hall 90 

"         V.  Johnston 140 

"         V.  Patterson 213 

"         f.  People 14 

"         V.  Rankin 86 

Canal  Co.  v.  Ray 164 

"         z/.  Templeton 121 

Cancemi  v.  People 113 

Carey  v.  Bright 170 

"      z'.  White 204 

Carland  v.  Bieme 136 

"        z/.  Cunningham 142 

Carlton  v.  Hescox 26 

Carnes  v.  Piatt 205 

"       z'.  White 50 

Carpenter  v.  Cohoes 82 

"          z-.  Dame 138 

"          V.  Dexter 118 

"  V.  Eastern       Trans. 

Co 105 

"           V.  G.  T.   R.  Co 104 

"           z'.  Welden 47 

Carr  v.  Dooley 166 

"     V.  Gale 240 

"     z".  L.  &  N.  W.  Railway  ..  272 

"     V.   Moore 26 

Carroll  v.  Carroll 96 

V.  M.  &  R.  R.  Corp....  188 

"       V.  Peake 128 

' '       V.  Sprague 203 

Carson's  Appeal 131 

Carter  v.  Boehm 103 

"       V.  Carter 235 

"       z'.  Fishing  Co 185 

"       V.  Montgomery 75 

"       z'.  State 194 

"      V.  Thurston 102 

Cartwright  v.  Green 209 

Case  V.  Marks 115 

Casoni  v.  Jerome 160 

Cass  f.  B.  &  L.  R.  Co 34 


TABLE  OF  CASES  CITED. 


PAGE 

Cassady  v.  Trustees 77 

Castner  v.  Sliker 7,  loi 

Castriquez'.  Imrie  90,  95,  99, 103,  262 

Catherwood  I'.  Caslon iii 

Cattison  v.  Cattison 19 

Caujolle  V.  Ferrie 75,  88 

Caulkins  v.  Whisler 189 

Cavanaugh  v.  Austin 30 

V.  Smith 98 

Caw  V.  Robertson 131 

Caylus  V.  N.  Y. ,  etc.  R.  Co 90 

Central  Bank  v.  Allen 141 

Central   Bridge  Corp.  v.  Butler  178 

Chadsey  v.  Green 51 

Chadwick  <■.  Fonner 42 

''         v.  U.  S 141 

Chaffee  v.  Taylor 108 

t'.  U.  S 63,64,66 

Chamberlain  f.  Ball    145 

"  t'.  Enfield 34 

"  V.  Huguenot  Co.   135 

"  V.  People 184 

"  V.  Sands 238 

"  z:  State 84 

"  V.  Vance 30 

Chamberlin  v.  Ossipee   237 

Chambers  v.  Bernasconi 66 

"  V.  Hunt 219 

''  V.  People 196 

"  V.  State 226 

z:  Watson 168 

Champlin  v.  Stoddart 207 

Chandler  v.  Jamaica,  etc.   Cor- 
poration       26 

"        t/.  Le  Barron no 

Chapin  v.  Dobson 166 

Chapman,  In  re 203 

Chapman  v.  Chapman 75 

''  I*.  Edwards 42 

"  V.  Rodgers 131 

"  I'.  Rose 189 

"        V.  Twitchell 51,  72 


PAG^ 

Chapman  v.  Wilber 112 

Chapman  Township  v.  Herrold  165 

Charles  v.  Huber 159 

Charlton  v.  Coombes 203 

Charter  v.  Charter 268 

Chase  v.  People 179 

V.  Smith 67 

"       V.  Springvale  Mills  Co.  77,  78 
"       V.  Sycamore,     etc.     Ins. 

Co 81 

"       V.  Winans  loi 

Chasemore  t,'.  Richards 186 

Chatfield  v.  Wilson 18Q 

Cheeney  v.  Arnold 132 

Chelmsford  Co.  v.  Demarest  . .     48 

Chenango  Bridge  Co.  v.  Lewis    63 

"  "  "v.  Paige.     66 

Cherry  v.  Baker 119 

"      V.  State 74 

Chicago,  etc.  R.  Co.  v.  Adler. . .  227 
"  "       "       7'.  Clark. . .     34 

''  "       "       V.  Klauber.  117 

"  ''       "   z'.  Packet  Co.     95 

Childs  V.  Jordan 41 

Chilton  V.  People 155 

Christmas  v.  Russell 100 

Chubb  V.  Gsell 115 

■'       V.  Salomons 200 

Church  V.  Howard 42,  47 

"        V.  Hubbart 121 

Chute  V.  State 239 

Cincinnati  v.  Cameron 218 

City  Bank  v.  Dearborn 94 

City  of  Phila.  v.  Gilmartin loi 

City    of    Rochester    v.    Mont- 
gomery       94 

Claflin  V.  Meyer 178,  181 

Clanton  v.  State 202 

Clark,  hire ., 50 

Clark  V.  Bond 234 

"       f.  Boyd 131 

"      f.  Brown 116 


TABLE  OF  CASES  CITED. 


Clark  V.  Burn . .    46,  68 

' '      V.  Clark 128 

"      V.  Freeman 108 

"       V.  Houghton 131,135 

"       V.  Life  Ins.  Co 82 

"      V.  Little 98 

"      r.  Miller 180 

"      ?/.  Morrison 47 

''      V.  Owens -j-^'  7^>  ^S^ 

' '       V.  Vorce 78,  223 

Clay  V.  Langslow 256 

Clayes  v.  Ferris 224 

Clayton  v.  Lord  Nugent 171 

Clegg  V.  Lemessurier 155 

Clement  w.  Spear 201 

Cleveland  v.  Newson 7 

Cleveland,  etc.  R.  Co.  v.  Ball..   102 
"             "     "     "     V.   Mara      7 
"              V.     Per- 
kins     128 

Cleverly  v.  Cleverly 168 

Clews  V.  Kehr 44 

Clifford  V.  Burton 49 

"       V.  Drake 237,  238 

Clifton  V.  Litchfield 165 

Clink  V.  Thurston 92 

Clinton  v.  State 195 

Cliquot's  Champagne 83 

Clodfelter  z;.  Hulett 98 

Closmadeuc  v.  Carrel 154 

Clough  V.  McDaniel 68 

Cloyes  V.  Thayer 209 

Coan  V.  Clow 98 

Coates  V.  Burlington,   etc.    R. 

Co 83 

Coburn  v.  Odell 209 

Cochrane  w.  Libby 76 

Codman  v.  Caldwell 64 

Coe  V.  Hobby 164 

Coffin  V.  Buckman 68 

"      V.  Vincent 238 

Cob^n  V,  Teller .,,.,..,   110 


PAGE 

Cohn  V.  Goldman 51 

Coit  V.  Haven 98 

' '   V.  Howe 43 

"   2'.  Milliken 120 

"   v.  Patchen 21 

Cokely  v.  State 223 

Cole  V.  Hills 159 

"     t".  Jessup 238 

"    V.  Sherard 123 

' '    V.  State 229 

Coleman  v.  Comm 194 

"        w.  Dobbins 118 

"        f.  Manhattan  Co 168 

"        V.  People 24,  29 

Coleman's  Appeal 93 

Collender  v.  Dinsmore 167 

Collins  V.  Bayntun 133 

"       w.  Collins Ill 

''      z'.  Comm jj 

''       V.  Dorchester 26 

"       z/.  Stephenson 228 

Colt  V.  People 15 

Colton  V.  Beardsley 97,  165 

Comins  v.  Hetfield  , .    222 

Comm.  V.  Abbott 4,  14 

"       z'.  Allen 1 10 

' '       V.  Annis 16,  20 

' '       V.  Barnacle 14 

"       7^.  Bigelow 29 

' '       V.  Billings 212 

"       V.  Blair 15 

"       V.  Bradford 14,  25,  ^^ 

"       z/.  Brady 21 

"       z/.  Brailey 19 

"       z/,  Brayman loi 

"       z/.  Brown 18,196 

"       z/.  Brownbridge i8i 

"       z/.  Burke 239 

' '       V.  Campbell 25 

"       V.  Carey 60 

"       z'.  Castles 133 

V.  Choate. . .  .14,  2|,  33,  179 


TABLE  OF  CASES  CITED. 


Comm.  V.  Coe 30 

V.  Cooper 61,  237 

V.  Crowninshield 11 

V.  Cuffee 55,  59 

V.  Culver 54 

V.  Curtis 54 

V.  Damon 30 

V.  Densmore 6,  67 

V.  Desmond 119,  122 

V.  Dorsey 22,  102 

V.  Dowdican loi 

V.  Drake 55 

V.  Eastman m 

v.  Eddy 179 

V.  Elisha 96 

V.  Elmey 18 

V.  Emigrant  Sav.  Bk  . .   160 

V.  Emmons 128 

V.  Felch 38,  74,  75 

V.  Fenno 32 

V.  Ferrigan 15 

V.  Ford 237 

V.  Galavan 18 

V.  Goddard 204 

V.  Goodwin 14,  16 

V.  Gorham 228 

V.  Gormley 188 

V.  Graves 211 

V.  Gray 236 

V.  Griffin 198 

V.  Hackett 9 

V.  Hall 80 

V.  Haney 61,  62 

V.  Harmon 56,  58 

V.  Harris 236 

V.  Hawkins 230 

V.  Hill 201 

V.  Holmes 211 

V.  Howe 56,  59 

V.  Hudson 14 

V.  Ingraham ....  10,  53,  234 
V.  Jackson 25,  28,  30 


PAGE 

Comm.  V.  James 56 

"       V.  Jeffries 4,  129 

"       v.  Jeffs 238,239 

"       V.  Jenkins 29,  235 

"       V.  Kane 165 

"       z/.  Kennon 34 

"       v.  Key es 224 

"       f.  Kimball 36,178 

V.  King 58,  59 

' '       V.  Lanman 239 

"       V.  Larrabee 211 

"       V.  Lawler 233 

"       w.  Littlejohn iii 

"       V.  McDermott 53 

"       V.  McGorty 179,  221 

"       V.  McKie 178 

"       s/.  McPike 9 

"       V.  Mead 202 

"       V.  Morey 55 

"       f.  Morrell 138 

"       z/.  Mosler 55 

"       I/.  MuUins 194 

"       V.  Nefus 108 

"       I/.  Nichols 31,209 

"       V.  Nott 54 

"       f.  O'Brien 101,114 

"       f.  Parker 213 

"       V.  Parmenter 16 

"      V.  People 225 

"       V.  Pitsinger 53 

"       V.  Pratt 209 

' '       V.  Price 29 

"       z/.  Reynolds 40 

"       z/.  Ricker 38 

"       z'.  Roberts 61 

V.  Ryan 34,  247 

"       V.  Sanborn 52 

"       f.  Scott 10,25,196 

V.  Sego 54,  56 

' '       V.  Shaw 209 

I/.  Smith 55.109 

' '       V.  Sparks  . ...,.., 210 


xxxu 


TABLE  OF  CASES  CITED. 


PAGE 

Comm.  V.  Sturtivant 82,  loi,  247 

'•       V.  Tarr 53 

"       t/.  Tolliver 15 

"       z/.  Tucker  man 55 

"       V.  Webster 6,  15 

"       v.  Williams 20 

Comstock  V.  Crawford 98 

V.  Smith 158,  159 

Confederate  Note  Case 170 

Conkey  v.  People 114,  235 

Conley  v.  Meeker 227 

Conn.  Ins.  Co.  v.  Ellis 83 

"       ''    f.  Schwenk  . .  .74,  75 
Conn.  Life  Ins.  Co.  v.  Schaefer  202 

Connelly  v.  McKean 188 

Connolly  v.  Pardon 172 

Conrad  v.  Griffey 229,  235 

Contf.e  V.  Piatt 119 

Continental    Ins.    Co.    v.   Del- 

pench. . .100,  loi 
"  Co.  V.  Lath- 

rop.ioo,   102,  221 
"  Co.  V.  Union 

Trust  Co 206 

Converse  v.  Colton 119 

"  V.  Wales 33 

Conway  v,  Nicol 31 

Cook  V.  Barr 40,  42 

' '     V.  Brown 230 

"     z/.  Champlain,  etc.  Co...     34 

"      V.  Cook 99,  187 

"     V.  N.  Y.  C.  R.  Co 79 

Cooke  V.  Tanswell 133 

Coole  V.  Braham 50 

Coon  V.  Swan 203 

Cooper  V.  Cooper 185 

Cope  c/.  Cope 184 

Copeland  v.  Taylor 51 

Copperman  v.  People 29 

Corbett  v.  Gibson 136,  140 

"       V.  State 53 

Corbin  v.  Jackson 128 


PAGE 

Corbishley's  Trusts,  Re 185 

Corbley  v.  Wilson 95,  176 

Corlies  v.  Van  Note 155 

Cornett  v.  Williams 138,  187 

Corning  v.  Ashley 64 

V.  Corning 155 

Cornish  v.  Farm,  etc.   Ins.  Co.  107 

Cornwell  v.  Wooley 131 

Corr  V.  Sellers 64 

Cory  V.  Bretton 51 

Costello  V.  Crowell  ...  .63,  106, 110, 
238.  239 

Costigan  v.  Lunt 78 

Cotton  V.  Smithwick 168 

Cottrell,  Matter  of 134 

Coulter  V.  Amer.  Exp.  Co 230 

Courney  v.  Macfarlane 178 

Courtenay  v.  Fuller 164 

Coveney  v.  Tannahill 208 

Cowley  zi.  People 128 

Cox  V.  Davis 131 

''    T/.  Palmer 159 

' '     V.  Sayres 230 

Coye  V.  Leach 185 

Coyle  V.  Comm 103,  105,  179 

Cozzens  v.  Higgins 137 

Craig  V.  Browne 147 

Craig's  Appeal 20 

Craighead  v.  McLoney...   157,  160 

Crawford  v.  Loper 78,  82 

Crease  v.  Barrett 71 .  73 

Crill  V.  Rome 81 

Crispell  v.  Dubois 71 

Crist  V.  Erie  R.  Co 27 

Crittenden  t'.  Rogers 238,  239 

Crocker  v.  Crocker 171 

"         !>.  McGregor 27 

Cromwell  v.  Sac 87 

Cronk  v.  Frith 132 

Cronkhite  v.  Nebeker 160 

Crooks  V.  Whitford 171 

Crosby  v.  Berger 204 


TABLE  OF  CASES  CITED. 


PAGE 

Cross  V.  Cross 183 

"      V.  Johnson 207 

"      V.  Riggins 203 

"       V.  Sabin 123 

Crossley  v.  Dixon 192 

Crossman  v.  Grossman  . . .   128,  158 

Croudson  v.  Leonard 91 

Crowell    V.    Western    Reserve 

Bank 127,  219 

Crower  v.  Pinckney 168 

Cuddy  V.  Brown 74 

Cullison  V.  Bossom 206 

Culver's  Appeal 98 

Cummer  f.  Kent  Judge 140 

Cummings  v.  Arnold 164 

V.  Taylor 221 

Cummins  v.  People 16 

Cunningham  v.   Hudson   River 

Bank 108 

"       V.  Smith's  Adm'r.  96,  125 

Currier  v.  Silloway 46 

Curry  v.  Walter 199 

Curtis  V.  Belknap 133 

"      V.  Chicago,  etc.  R.  Co..  201 

Curtiss  V.  Ayrault 82 

Cushing  V.  Field 160 

"        V.  Laird 91 

Cuthbertson's  Appeal 179 

Cutler  V.  Thomas 164 

' '       V.  Wright 125 

Cutter  V.  Caruthers 119 

' '       V.  Evans 95 

Cuyler  v.  McCartney 43 

D 

Dabney  v.  Mitchell 199,  237 

Daby  v.  Ericsson 22 

Da  Costa  v.  Jones 249 

Daily  z/.  N.  Y. ,  etc.  R.  Co 60 

Dain  v.  Wyckoff 115 

P^inese  t/.  Hall 104 


PACK 

Dale  V.  Dale  179 

Dalrymple  v.  Williams 201 

Dalton  V.  Angus 186 

Daly  V.  Byrne 30 

Dan  V.  Brown 47,  131 

Dana  v.  Conant 141 

"     7/.  Fiedler 170 

Dance  v.  McBride 32 

Daniel  v.  Daniel 205 

V.  Pitt 51 

Daniels  v.  Hudson   River  Ins. 

Co 107 

Dann  v.  Kingdom iii 

Darling!/.  Westmoreland 4,  loi 

Dartmouth  (Lady)  v.  Roberts  .  265 

Davenbagh  !'.  M'Kinnie 207 

Davenport  v.  Ogg 220 

Davidson  v.  Cooper 157,  160 

V.  Delano 68 

Davie  v.  Briggs 185 

Davies  v.  Lowndes 74,  76,  260 

"       V.  Waters 208 

Davis  V.  Byrd 220 

"      V.  Davis 99,  176 

"      z/.  Field 238,239 

"      I*.  Spooner 131 

' '      V.  State 83,  235 

Day  V.  Day 194 

"     V.  Floyd 85 

"     V.  Stickney 228 

Dayton  v.  Monroe 11,  33 

Dazey  v.  Mills 41 

Dean  v.  State 184 

De  Armond  z/.  Neasmith 83 

De  Camp  v.  Miller 98 

Deck  V.  Johnson 45 

Dederich  z;.  McAllister 180 

De  Haven  z'.  De  Haven 75 

De  Kay  v.  Irving 168 

Delafield  v.  Hand I2i 

Delaware,  The 193 

p.  &  C.  Towboat  Co.  v.  Starrs.   ^95 


XXXIV 


TABLE  OF  CASES  CITED. 


PAGE 

Demarest  v.  Darg 87 

De  May  v.  Roberts 232 

Den  V.  McAllister 139 

Dennie  v.  Williams 40,  46 

Dennison  v.  Page 184 

Dent  V.  Dent 42 

Derby  z'.  Ailing 82 

De  Rosaz,  In  the  Goods  of 192 

Derwert  v.  Loomer 47 

De  Thoren  i/.  A.  G iii 

Devlin  v.  Comm 85 

Dewey  v.  Moyer 10 

De  Witt  V.  Barly loi 

"        v.  Prescott 140 

Dexter  v.  Hall 105 

Dickerman  v.  Graves 197 

Dickerson  v.  Colgrove 188 

V.  State 58 

Dickinson  v.  Poughkeepsie 13 

Dickson  v.  State 220 

Diehl  V.  Adams  Co.  Ins.  Co. . .     81 

"      t-.  Emig 136 

Dilleber  I/.  Life  Ins.  Co 32 

Dimick  v.  Downs loi 

Di  Sora  v.  Phillipps 103 

Distin  V.  Rose 30 

Dist.  of  Col.  V.  Armes 26,  194 

Division  of  Howard  Co 118 

Dixon  V,  Hammond 192 

"       !<.  Nichols 123 

*'      V,  People 177 

Dobson  V.  Pearce 99 

Dodd  V.  Gloucester  Ins.  Co 180 

' '     V.  Moore 235 

Dodge  V.  Haskell  158,  159 

"       V.  Trust  Co ,42,  44 

Doe  V.  Barton , .   190 

"    V.  Baytup 190 

"    i".  Beviss 69 

"    z*.  Brydges 91 

"    ».  Catomore 158 

"    V.  CouUbred,,,.,,,...,..  iSo 


Doe  V.  Date 207 

''    V.  Derby 78 

"    d.  Devine  v.  Wilson 186 

' '    V.  Edwards 123 

■'    d.  Hammond  t'.  Cooke  ...   187 

"    V.  Hiscocks 172,268,269 

"    V.  Hodgson 240 

' '    V.  Kemp ID 

' '    V.  Needs 172,  268 

"    f.  Palmer 71 

"    V.  Pegg 190 

"    V.  Pulman 12 

' '    V.  Ross 143 

''    V.  Suckermore 109 

"    V.  Smyth 190 

"    V.  Tatham 78,  250,  253,  262 

"    V.  Turford 63 

"    z).  Vowles   69 

Dole  V.  Wilson 121 

Dollner  v.  Lintz 233 

Donahue  v.  Coleman 187 

Donellan  v.  Hardy 142 

Donelson  v.  Taylor 222 

Donnelly  v.  State 61,  223 

Donohue  v.  People 15 

Doon  V.  Rarey 52 

Doran  v.  Muller 224 

Dorman  v.  Kane 34 

Dorrell  v.  State 84 

Doty  V.  Brown 90 

Doubet  V.  Kirkman 116 

Doughty  V.  Doughty 100 

Douglass  V.  Mitchell's  Excr 47 

Dover  z/.  Child 88 

Dowdell  V.  Wilcox 230 

Donner  v.  Rowell 238 

Downey  z-.  Andrus 194 

Downs  V.  N.  Y.  C.  R.  Co 39 

Doyle  V.  Jessup 236 

''       z/.  N.  Y.  Infirmary 107 

Draper  v.  Draper 194 

"       z/.  Hatfield 52,135 


TABLE  OF  CASES  CITED. 


XXXV 


PAGE 

Drew  V.  Swift i68 

Driscoll  V.  People 17,  228 

Drown  v.  Allen 115 

Drum  V.  Drum 157,  158 

Drummond  v.  Priestman 94 

Drury  v.  Hervey 18 

■•       V.  Midland  R.  Co 71 

Du  Barre  v.  Livette 275 

Du  Bois  V.  Hermance 84 

Dudley  v.  Beck 203 

Duflfin  V.  People 129 

Dufresne  v.  Weise 229 

Duffy  V.  People 56 

Dugan  V-  Mahoney 238,  239 

Duncan  v.  Lawrence 42 

"        y.  Seely 239 

Dunham  v.  Averill 169,  171 

' '         V.  Barnes 166 

"         w.  Bower 89 

Dunlap  V.  Cody 99 

Dunn,  In  re 207 

Dunn  V.  Record 179 

Dunn's  Case 29 

Durant  v.  Abendroth 91,  100 

"       V.  Essex  Co 87 

Durgin  v.  Somers 52 

Durkee  v.  Leland 208 

"       I/.  Vt.  R.  Co 129 

Duttenhofer  z/.  State   203,205 

Dutton  V.  Woodman 223 

Duval  V.  Covenhofer 51 

"      f.  Davey 116 

Duvall's  Excr.  v.  Darby 127 

Dwight  V.  Brown 67 

Dwyer  V.  Collins 139,  T41,  265 

Dyckman  v.  Mayor  of  N.  Y 97 

Dye  V.  Young -^^ 

Dyer  v.  Fredericks 139 

E 

Eagan  v.  State 124 

Eames  v.  Eames , 187 


PAGE 

Earl  V.  Tupper 78 

Earl's  Trust 123 

Earle  v.  Grout 203 

Eason  v.  Chapman 233 

East  Pa.  R.  Co.  v.  Hottenstine  102 

Eastman  v.  Martin 76 

"        r'.  Wadleigh 100 

Eaton  V.  Alger 79 

I      ■'      f.  Eaton 162 

"       f.  Tallmadge 74i  76 

1  Eckert  v.  Louis 157 

"       V.  Pickel 157 

Eddy  V.  Gray 23 

Edgar  v.  Richardson 128 

'  Edgerton  v.  Wolf 48 

Edington  v.  Life  Ins.  Co. . .  .32,  206 

Edwards,  In  re 177 

Edwards  !».  Bonneau 141 

"        V.  Noyes 135 

"        V.  Tracy 45,  128 

Egan  V.  Bowker 16 

Egbert  v.  Egbert loi 

"       f.  Greenwalt 183 

Eggler  V.  People 20 

Eidt  V.  Cutler 112 

Eighmy  v.  People 6,  18 

Eilbert  v.  Finkheiner 139 

Elkin  V.  Janson 181 

Elkins  V.  McKean 6 

Ellicott  V.  Pearl 71,  73 

Elliott  V.  Boyles 227 

"      V.  Hayden 94 

"      W.Russell 115 

"      z/.  Van  Buren loi 

Ellis  V.  Buzzell 176 

"    V.  Duncan 186 

Ellison  V.  Cruser 240 

"      v.  Lindsley  ^^7 

"      z/.  Weathers 199 

Ellsworth  V.  Muldoon 67 

Elwell  V.  Cunningham 144 

"     ^,  Mersick 137.139 


TABLE  OF  CASES  CITED. 


PAGE 

Ely  V.  Ely 158,  159 

Emerson  f.  Bleakley 78 

"         V.  Lowell  Gas  Co.  24,  103 

Emery  v.  Fowler 78 

Empire  Mf  g  Co.  v.  Stuart 108 

Enders  v.  Van  Steenbergh.  .41,  156 

Ennis  v.  Smith 104,  152 

Enos  V.  Tuttle 7 

Entick  V.  Carrington 135 

Erie  R.  Co.  v.  Heath 140 

Eschbach  v.  Collins 159 

Eskridge  v.  State 59 

Eslow  V.  Mitchell 138 

Estabrook  v.  Boyle 178 

Ettinger  v.  Comm 14,  18,  53 

Evans  v.  Beattie 50 

"      z/.  Evans 211 

"      V.  Rees 259 

Evanston  v.  Gunn 80 

Evarts  v.  Young 72 

Evening  Journal  Ass'n  v.  Mc- 

Dermott 30 

Everitt  v.  Everitt 70 

Excrs.  of  Shoenberger  v.  Hack- 
man 165 

Eyster  v.  Gaff 119 

F 

Fairchild  v.  Bascom 230 

V.  Fairchild 40 

Fairlie  v.  Hastings 256 

Fall  River  Bk.  v.  Buffinton 189 

Fanning  v.  Ins.  Co 92 

Farley  z/.  McConnell 120,  122 

"       V.  Rodocanachi 39 

Farmers'  Ins.  Co.  v.  Bair. .  224,  230 

"  "      "    V.  Gargett  ..  176 

Farnum  v.  Farnum 228 

Farrar  v.  Olmstead 85 

Farrington  v.  Payne 89 

passin  v.  Hubbard ..,,,,,,,.,.  126 


PAGE 

Faucett  v.  Nicholls 27 

Faulkner  f.  Bailey 48 

Faunce  v.  Life  Ins.  Co 166 

Fa.xon  v.  Hollis 65 

Fay  V.  Guynon 198 

"   V.  Harlan 32 

Fed.  St.,  etc.  R.  Co.  v.  Gibson.  178 

Fellers  v.  Lee 119 

Fellows  V.  Smith 41 

Fenwick  v.  Thornton 44 

Ferguson  v.  Crawford 98,  99 

'  •         V.  Hubbell 103 

Ferson  v.  Wilcox 47 

Feversham  f.  Emerson 92 

Few  V.  Guppy 208 

Fickett  V.  Swift 41 

Field  V.  Munson 168 

"      V.  N.  Y.  C.  R.  Co 27 

Fierson  v.  Galbraith 212 

Fife  V.  Comm S3.  54.  55 

Filkins  v.  People 188 

' '      V.  Whyland 166 

Fillo  V.  Jones 25 

Finnegan  v.  Dugan 23 

Finneran  v.  Leonard 98 

First  Nat.  Bk.  v.  Robert no 

Fisher  z*.  Mayor 63,64 

Fisk,  Ex  parte 216 

Fitzgerald  v.  McCarty 65 

Fitzgibbon  v.  Brown 115 

Fitzpatrick  f.  Fitzpatrick. .  168,  169 

Fitzsimons  I/.  Marks 100 

Flagg  V.  People 54 

Flattery  v.  Flattery 211 

Flitters  v.  Allfrey 88 

Flood  V.  Mitchell 239 

Flowery  Co.  v.  Bonanza  Co.  ..  155 

Fogarty  v.  Jordan 45 

Fogg  V.  Dennis 108 

Follansbee  v.  Walker. .   86,  199,  201 

FoUett  V,  Jefferyes 203 

Folsom  V,  Apple  River  Co , , . ;  237 


TABLE  OF  CASES  CITED. 


PAGE 

Folsom  V.  Brawn 176,  228 

Foot  V.  Bentley 129 

Foote  V.  Hayne 204 

Forbes  v.  Howe 31 

Force  v.  Craig 155 

Ford  v  Jones 236 

Forrest  v.  Forrest 137 

' '       V.  Kissam 222 

Forsythe  v.  Hardin 132 

' '        V.  Norcross 65 

Fosdick  V.  Van  Horn 137,  138 

Foster  v.  Newbrough 139,  233 

"      V,  People 16 

"      v.  Persch 40 

Foster's  Appeal 70 

Foulkes  V.  Chadd 108 

Fowler  v.  Chichester 20 

Fox  V.  Comm 120 

"    V.  Moyer 218 

"    V.  People 16 

"    f.  Riel 132 

Foye  V.  Patch 86,  87,  92,  108 

Frank  v.  Manny 138 

Franklin  Ins.  Co.  v.  Gruver  . . .   103 

Fraser  v.  Hunter 72 

"      V.  Jennison 206 

Frauenthals  Appeal 87 

Frazer  v.  Frazer 68 

Frazier  v.  Brown 186 

Frear  v.  E vertson 41 

Fred.  M.  Laurence,  The 220 

FTee  v.  Buckingham 195,  227 

Freeman  v.  Cooke 189,  271 

Frew  V.  Clarke 21 

Freydendall  v.  Baldwin 98 

Frost  V.  Deering 132,  134 

' '     V.  McCargar 234 

Fry  V.  Wood 77 

Fuller  V.  Linzee 185 

"      V.  Naugatuck  R.  Co 33 

"      7'.  Rice 222 

Funk  V.  Ely 35 


Furbush  v.  Goodwin 224 

Furley  v.  Haubert 92 

Furst  V.  Second  Av.  R.  Co....  227 

G 

Gaffney  v.  People 232 

Gage  V.  Campbell 190,  240 

Gahagan  z/.  B.  &  L.  R.  Co 26 

Gallup  V.  Wright 172 

Galpin  v.  Page 98 

Gait  V.  Galloway 80 

Gardiner  v.  People 15 

Gardner  v.  Collector 118 

z/.  Eberhart   128 

Garland  v.  Jacomb 191 

Garloch  v.  Geortner 188 

Garner  v.  White 219 

Garrard  v.  Lewis 160 

Garrity  v.  People 179 

Gartside  v.  Conn.  Ins.  Co 206 

Gass  V.  Stimson 222 

Gassen-Lernier  v.  State 25 

Gawtry  v.  Doane 63 

Gay  V.  Parpart 180 

Geary  v.  Kansas 15s 

' '      V.  People 228 

Gelott  V.  Goodspeed 130,  131 

Gelston  v.  Hoyt 90,  120 

V.  Shields 171 

George  v.  Pilcher 221,  235 

Gerish  v.  Chartier 31 

Germania  Bank  i'.  Distler.  .153,  162 

Gertz  V.  Fitchburg  R.  Co 234 

Gery  v.  Redman     16 

Gethin  v.  Walker 141 ,  145 

Geyer  v.  Aguilar 84,  91 

Gibney  v.  Marchay 42 

Gibson  v.  Comm 196 

"       V.  Hunter 30 

Gilbert  I'.  Flint,  etc.  R.  Co 124 

"       I/.  Knox 71 


TABLE  OF  CASES  CITED. 


PAGE 

Gilbert  v.  Sage 223 

''       V.  Simpson    no 

Gildersleeve  v.  Landon 39 

Gillespie  v.  Torrance 87 

Gillies  V.  Smither 131 

Gillooley  v.  State 206 

Gilman  7/.  Gilman 99,  100 

"       zj.  Moody 153 

Gilmanton  v.  Ham 23 

Gilmore  v.  Driscoll 186 

Giltman  v.  Strong 95 

Girard  Ins.  Co.  v.  Marr 245 

Gleadow  v.  Atkin 66,  259 

Glenn  v.  Gleason 223,  232 

Gloucester  v.  Gaffney 12 

Glynn  v.  George 190 

Goblet  V.  Beechy 170 

Goble  w.  Dillon 89 

Godard  v.  Gray 99,  262 

Goddard  v.  Foster 171 

"         V.  Gardner 204 

Godeau  v.  Blood 30 

Goersen  v.  Comm 25,  j,'^,  35 

Golder  v.  Bressler 165 

Good  V.  French 179 

Goodall  V.  State 237 

Gooding  v.  Morgan 122 

Goodnow  I'.  Smith 84 

Goodrich  v.  Tracy 45 

"         V.  Weston 138 

Goodtitle  v.  Baldwin 186 

Goodwin  v.  Appleton 122 

V.  Jack 12,  156 

Gordon  v.  B.  &  M.  R.  Co 27 

"       V.  Bowne 180 

' '       V.  Comm 202 

Gore  V.  State S3 

Gorrissen  v.  Perrin 170 

Gosling  V.  Birnie 192 

Goss  V.  Lord  Nugent 166,  267 

Gott  V.  Dinsmore 51 

Gouge  V.  Roberts 26 


Gough  V.  St.  John 115 

Gould  V.  Conway 66 

"      V.  Crawford 194 

"      i;.  Lakes 7I 

"      V.  Norfolk  Lead  Co  ....  230 

"      V.  R.  Co 87 

Gragg  V.  Learned 134,  144 

Graham  v.  Chrystal 233 

' '        V.  Davis 224 

' '        V.  Graham 199 

' '        V.  Spencer 100 

Grand     Rapids,    etc.     Co.    v. 

Huntley 32 

G.  T.  R.  Co.  V.  Latham 95 

"  "        f.  Richardson. .  27,  34 

Grant  v.  Coal  Co 150 

Grattan  v.  Ins.  Co 39,  206 

Graves  v.  Jacobs 20 

f.  Johnson 162 

"       V.  State 179 

Graville  v.  N.  Y.  C.  R.  Co  ... .  81 

Gray  v.  Comm 53 

"     V   Goodwin 38 

Gray's  Case 62 

G.  W.  R.  Co.  V.  Bacon 181 

Green  f.  B.  &  L.  R.  Co 48 

V.  Caulk 238 

"       V.  Disbrow 22 

"       V.  New  River  Co   84,  94 

"       V.  N.  Y.  C.  R.  Co 48 

"       z'.  Randall 163 

"      V.  Rice 230 

Green,  etc.  R.  Co.  v.  Bresner. .  30 

Greenabaum  v.  Elliott 89 

Greenawalt  t".  Kohne 161,  163 

"           V.  McEnelley  .  .116,  198 

Greenfields.  Camden... 72,  74,  187 

V.  People..  6,  16,  22,  106 

Greenfield  Bk.  v.  Crafts 40 

Greenfield  Sav.  Bk.  v.  Stowell. 

160,  190 

Greenman  v.  O'Connor 219 


tABLK  Of  CASES'  CITED. 


PAGE 

Greenough  v.  Eccles 278 

"          V.  Gaskell 274 

Greenwood  v.  Sias 46 

Gregg  J'.  Forsyth 151 

Gregory  x'.  Chambers 115 

"          t'.  Morris 232 

Grierson  z'.  Mason 162 

Griffin  v.  Auburn 24 

'■'       V.  State 113 

Griffith  V.  Differiderffer 21,  33 

Grignon"s  Lessee  v.  Astor 97 

Grimes  v.  Kimball 137 

Griscom  v.  Evens 169 

Griswold  v.  Pitcairn 120 

Grob  V.  Cushman 118 

Guaranty  Co.  v.  Gleason 10 

Guernsey  v.  Rexford 40 

Guetig  V.  State 179 

Guiterman   v.     Liverpool,    etc. 

St.  Co   105 

Guldin's   Adm'rs.     v.  Guldin's 

Adm'rs 193 

Gulerette  v.  McKinley 234,  236 

Gulick  V.  Gulick 204 

Guptill  V.  Verback 206 

Gurney  v.  Howe 80 

Gutterson  v.  Morse 225 

Guy  V.  West 180 

H 

Hackett  v.  Judge 219 

"        V.  King 22 

"        V.  People 59 

* '        ','.  Potter 104 

Haddock  t^.  B.  &  M.  R.  Co.. 73,  74, 

75 

Hahn  v.  Kelly 98 

Haines  v.  Guthrie 74 

Hale  z/.  Rich 42 

' '     V.  Silloway 42 

"     V,  Smith 181 


Haley  v.  State 229,  234 

Halifa.Y   Guardians    v.   Wheel- 
wright     272 

Hall  V.  Bainbridge 155 

"     f.  Brown 34)36,125 

"     V.  Costello 104 

"     V.  Erwin 162 

"     v.  Glidden 65 

' '     V.  Hall 173^ 

' '     V.  Huse ■...-.   ...•.•.•...■  199 

"     z/.  Lawrence ...........  ...■  119' 

"     r-.  Mayo 72 

' '     V.  Ray 239 

Halliday  v.  Martinett    63 

Ham  V.  Wisconsin,  etc.  R.  Co.  245 

Hamer  v.  McFarlin 115 

Hamilton  v.  Nickerson 127 

"         V.  People.. 6,  11,  233,  234 

Hamish  v.  Herr 194 

Hammond  v.  82 

"  V.  Bradstreet 73 

"  I'.  Hopping 141 

"  V.  Varian 36,  108 

Hamsher  v.  Kline 134 

Hance  I/.  Hair 46 

Hancock  Ins.  Co.  z-.  Moore 42 

Hanoffz'.   State 227 

Hanover  R.  Co.  v.  Coyle 7 

Hanson  z".  Eustace's  Lessee. . .   135 

''        V.  South  Scituate 80 

Happy  V.  Mosher 50 

Harding  v.  Jewell 155 

"        z/.  Williams 284 

Hardman  v.  Wilcock 192 

Hardy  v,  Merrill loi 

Harger  v.  Thomas 95 

"       V.  Worrall 178 

Harland  v.  Eastman 76 

Harman  v.  Brotherson 97 

Harrat  v.  Wise 33 

Harriman  v.  Jones 203 

Harrington  v.  Gable 40,  134 


kl 


TABLE  OF  CASES  CITED. 


PAGE 

Harrington  v.  Keteltas 14 

Harris  v.  Barnett 146 

"      V.  Harris 70,  177 

'■      V.  Panama  R.  Co 82 

"      z".  White 104,180 

Harrison  v.  Charlton 78 

"        V.  Clark 95 

' '        V.  Rowan 225 

Harrison's  Appeal 230 

Hart  V.  Hudson  River  Bridge 

Co 229 

"      V.  Stevenson 50 

Harter  v.  Crill 32 

Hartford  v.  Palmer 194 

Hartman  v.  Diller 10 

''         V.  Keystone  Ins.  Co. .   107 

Hartranft,  Appeal  of 200 

Harvey  v.  Osborn 225 

"        z*.  Thorp 139 

Harwood  v.  Mulry 66 

' '         V.  People 34 

Haskins  v.  Warren 13,  180 

Hassan  v.  Barrett 162 

Hastings  v.  Riders loi 

' '         V.  Stetson 16,  1 15 

Hatch  V.  Brown 42,  219 

z'.  Carpenter 136 

"      f.  Douglas 167 

"      V.  Elkins 48 

"      V.  Sigman 70 

Hatcher  z/.  Rocheleau 119,147 

Hatfield  v.  Lasher 115 

Hatton  V.  Robinson 204 

Haughwout  c'.  Garrison 162,  180 

Hawes  v.  Draeger 183 

"      z/.  Gustin 211 

Hawkins  v.  Fall  River 112 

"       z/.  Grimes no 

Hawkes  v.  Charlemont 108 

Hayden  v.  Goodnow 159 

Hayes  v.  Kelley 40 

"      V.  People Ill 


PAGE 

Haynes  v.  Comm 17 

"        v.  Haynes 159 

"        f.  Ledyard 223 

"        z/.  Ordway 89 

Hay's  Appeal 222 

Hays  V.  Miller 115 

Hay  ward  v.  People 226 

Hazleton  f.  Union  Bk no 

Hazlewood  v.  Heminway 219 

Heald  z*.  Heald 167 

Healy  v.  O'Sullivan 116 

Hebbard  v.  Haughian 162,  205 

Hedden  v.  Roberts ^j 

Hedge  v.  Clapp 230 

Hedrick  v.  Hughes 63 

Heffron  v.  Gallupe 201 

Heine  v.  Comm 10,   113 

Heinemann  v.  Heard 177,  178 

Heiser  v.  Hatch 95 

Heller  v.  Howard 50 

Helyear  v.  Hawke 49 

Hemenway  v.  Smith 205 

Hemingway  v.  Garth 231 

Hemmens  v.  Bentley 223 

Hemmenway  v.  Towner 183 

Hendrick  z'.  Whittemore 98 

Hendrickson  v.  People 58 

Henry  v.  Bishop 130 

"       z/.  Salina  Bank 209 

Hepler  z-.  Mt.  Carmel  Bank...     78 

Herrick  v.  Malin 157 

"        V.  Smith 235 

"        z'.  Swomley no 

Heslop  V.  Heslop 16 

Hess  V.  Griggs 132 

"     z'.  Wilcox 221 

Hester  z/.  Comm. .  .15,  211,  227,  235 

Hetherington  z".  Kemp 36 

Hewett  V.  Chapman 201 

Hewitt  V.  Morris 131 

Hewlett  V.  Wood loi,  222 

Hey 's  Case 220 


TABLE  OF  CASES  CITED. 


xU 


Heyward's  Case 199 

Heywoodz'.  Hey  wood 42 

Hibbs  V.  Blair 199 

Hickins  v.  People's  Ins.  Co...   224 

Hicks  V.  Lovell 77 

Higbee  v.  Dresser 202,  203 

"       V.  Life  Ins.  Co loi 

Highberger  v.  Stiffler 199 

Higbie   v.   Guardian,    etc.   Ins. 

Co 127 

Higgins  V.  People 17 

"        V.  Reed 139 

Higham  v.  Ridgway 69,  258 

Hildreth  v.  O'Brien 163 

Hill  V.  Blake 164 

V.  Canfield 219 

V.  Eldridge 74 

V.  Naylor 30 

V.  Packard 143 

V.  State 238 

V.  Syracuse,  etc.  R.  Co  ...     25 

Hillis  V.  Wylie  233 

Hills  V.  Goodyear 176 

"     V.  Home  Ins.  Co 102 

Hilton  7'.  Bender 187 

Himmelmann  v.  Hoadley 120 

Hinckley  v.  Beckwith 122 

Hoag  V.  Lament 48 

Hodgkins  v.  Chappell 24 

Hoey  V.  Jarman 159 

Hoffman  v.  Bank  of  Milwaukee.   191 

"        V.  Kemerer 236 

V.  N.  Y.  C.  R.  Co....     66 

Hogan  V.  Cregan 116 

Hohensack  v.  Hallman 67 

Holbrook  V.  Gay 65 

"         7/.  Holbrook 43 

Holcomb  V.  Holcomb loi,  194 

' '         V.  People 236 

Holcombe  v.  Hewson 25 

HoUey  v.  Young 40  47 

Holly  V.  Boston  Gas  Co 33 


Holman  v.  Kimball 204 

Holmes'  Appeal 162 

Holmes  v.  Anderson 229 

''        z'.  Trumper 190 

Holt  V.  Squire 49 

"     V.  Walker 51 

Holzworth  V.  Koch 163 

Homan  v.  Earle 211 

Homans  v.  Corning 127 

Home  V.  Williams 78 

Home   Ins.    Co.  v.    Baltimore, 

etc.  Co 52 

Homer  v.  Fish 86 

"      V.  Life  Ins.  Co 168 

Hood  z/.  Hood 85 

Hoover  v.  Gehr 65 

Hope  V.  Liddell 207 

"       t".  People 25,33 

Hopewell  v.  De  Pinna 184 

Hopkins  v.  Lee 93 

Hoppe  V.  Byers 71 

Hopt  V.  Utah 55 

Horn  V.  Pullman 21 

Hornbeck  v.  State 17 

Hornbuckle  v.  Stafford 245 

Horseman  v.  Todhunter 219 

Horstman  v.  Kaufman 209 

Horton  v.  Chadbourn 229,  232 

Hosford  V.  Ballard 12 

Hotchkiss  t'.  Mosher 141,  163 

Houghton  V.  Jones 223 

"       V.  Watertown  Ins.  Co.   167 

Houlston  V.  Smith 154 

House  V.  Metcalf 27 

Hovey  v.  Grant 30 

How  z'.  Hall 141 

Howard  v.  Brower 19S 

''        If.  Daly 36 

"        V.  Hudson 189 

"        z^.  McDonough 238 

"        z'.  Moot 123,124 

"        t',  Patrick 77,226 


*Iu 


Table  of  cases  ciTEn. 


PAGE 

Kovvard  v.  Sexton 30 

"        t'.  State 179 

Howe  V.  Howe  ...-..- 33' 

ilowe  Co.  V.  Pettibone 218 

Howe  Machine  Co.  v.  Edwards  217 

Howell  V.  Goodrich 89 

Howland  v.  Blake 165 

fiowley  V.  Whipple 129 

Howser  v.  Comm 201 

Hoy  V.  Morris 204 

Hoyt  V.  Newbold 185 

Hubbard  v.  Gurney 162 

"         V.  Hubbard 220 

"        V.   Russell 128 

Hubbell  V.  Judd  Oil  Co..   136,  208 

"         2'.  Meigs 81,143 

Hudnutt  V.  Comstock 237 

Huff  V.  Bennett 129,  199,  237 

Hughes  V.  Muscatine 103 

57.  U.  S 87 

''        I/.  Westmoreland  Co. .  223 

Huidekoper  7/.  Cotton  201 

Hulbert  v.  Nichols 68 

Humes  7'.  O'Bryan 67 

Hunnicutt  v.  Peyton 72 

Hunt  V.  Gray 157,  158 

"     t'.  Hunt 85,100 

"     z/.  Johnson 76 

"     V.  Lowell  Gas  Co 24,  105 

"     z'.  Strew 45 

Hunter  v.  Atkins 179 

"       t'.  Leathley 207 

' '       V.  State 7,  19 

Huntley  v.  Whittier jj 

Hurlburt  v.  Meeker 223 

Hurst  V.  Leach 173 

Huston  V.  Ticknor 130 

Hutchings  v.  Corgan 78 

Hutchins  v.  Hebbard 164 

"         2/.  Kimmel ill 

Hutchinson  v.  Bernard 219 

"     z/.  Consumers' Coal  Co.  201 


Hyde  Park  v.  Canton 177,  185 

Hynes  y.  McDermott 104,  108, 

III,  152 

i 

Idaho,  The 192 

Indianapolis,    etc.    R.     Co.    v. 

Horst 181 

Ingalls  V.  State 179,  211 

Ingram  v.  State 120 

Inhab.  of  Woburn  v.  Henshaw.  205 

Insurance  Co.  v.  Mosley 7 

"             "v.  Newton 39 

"  "     y.  Weide 4i  239 

Ireland  v.  Rochester 80 

Iron  Cliffs  Co.  v.  Buhl 83 

Irwin  V.  Thompson 164 

Isaacson  v.  N.  Y.  C.  R.  Co 124 

Isler  V.  Dewey 234 

J 

Jackson  v.  Allen 191 

' '        V.  Bailey ....  78 

"        V.  Benton  127 

' '        V.  Brooks 1C9 

' '        V.  Browner 74 

"        I'.  Chamberlain 131 

"        V.  Christman 133,  156 

V.  Cole 187 

"        z/.  Comm 62 

"        V.  Cooley  76 

' '        V.  Crissey 78 

' '        V.  French 204 

"        V.  Frost 82 

' '        V.  Gager 130 

"        V.  Humphrey 199 

V.  King ^2 

V.  Kingsley 133 

"        V.  Lawson 79 

"        V.  Lunn 185 


TABLE  OF  CASES  CITED. 


xliii 


Jackson  v.  Luquere , . .  156 

V.  McCall 72,  185 

"        V.  Moore 187 

V.  Sill 168 

V.  State 25,  55 

"        V.  Vail 131,  132 

"        V.  Van  Dusen 108 

I'.  Vickery 131 

' '        V.  Waldron 131 

V.  Witter 82 

"        t'.  Woolsey 133 

Jaggers  f.  Binning 50 

Jardine  v.  Reichert 99 

Jarrettz'.  Leonard 50 

Jarvis  v.  Driggs 87 

Jay  V.  East  Livermore 145 

Jefferds  v.  People 59 

Jenner  v.  Hinch 173 

Jessup  V.  Cook 78 

Jewell's  Lessee  v.  Jewell 74,  75 

Jewett  V.  Banning 14,  18 

"       V.  Brooks 105 

Joannes  t.  Bennett 136 

Jochumsen  v.  Suffolk  Sav.  Bk.  85 

Johnson  v.  Agr.  Ins.  Co 176 

"        I'.  Arnwein 136 

''         V.  Daverne 109 

"        V.  Donaldson 140,  207 

"        V.  Holliday 18 

"        V.  H.  R.  R.  Co 124 

"        V.  Kershaw 138 

"        V.  Leggett 231 

"        t".  Sherwin 19 

"        V.  State 60 

Johnson's  Will,  In.  re 70 

Johnston  v.  Hedden 123 

"        V.  Jones 82 

Jones  V.  Abraham 213 

' '       V.  Greaves 176 

• '      V.  Hoey 213 

"       V.  Jones 23 

"      f.  Keen 218 


Jones 


Jordan 


Jorden  v 
Joyce  V. 
Juilliard 


PAGE 

Knaus 40,  136 

People 96,  194 

Phelps  153 

Roberts 131 

State 60,  61,  62 

Stevens  115 

Tucker 103 

Underwood.   132,  133,  138 

Williams 10 

.  Osgood 25,  138 

.  State 55 

.  Stewart  159 

.  Van  Epps 86 

.  Volkenning  95 

.  Money 190 

Maine  Ins.  Co 107 

V.  Chaffee 163 


K 

Kallenbach  v.  Dickinson ....  46,  49 

Kane  I'.  Hibernia  Ins.  Co 176 

Kearney  v.  Denn 96 

"        z/.  Mayor  of  N.  Y 136 

Keech  v.  Rinehart 185 

Keen's  Excr 160 

Keep  V.  Griggs 197,  210 

Kehoe  v.  Comm 61,  196 

Keichline  v.  Keichline 146 

Keller  7^.  N.  Y.  C.  R.  Co 107 

"      V.  Stuck 185 

Kelley  v.  People 11,  18,  53 

Kelliker  v.  Miller.    26 

Kellogg  V.  French 31 

"        V.  Kellogg 143.  145 

' '        V.  Secord 77 

Kelly  V.  Drew 177 

"      V.  West 85 

Kelsea  v.  Fletcher 238,  239 

Kelsey  v.  Hanmer 131 

V.  Layne 229 

Kemp  V.  King 207 


xliv 


TABLE  OF  CASES  CITED. 


PAGE 

Kempland  v.  Macaulay 50 

Kempsey  v.  McGinnis 105 

Kendall  v.  May ' 194 

"        i^.  Weaver 223 

Kendig  v.  Overhulser 176 

Kendrick  v.  Comm 209 

Kennebec  Co.  v.  Augusta  Ins. 

Co 163 

Kennedy  v.  Comm 119 

"        V.  Doyle 63,    66 

"        z'.  Gifford 115 

' '        V.  People 5,  247 

"        z/.  Ry all 21 

Kent  V.  Garvin 66 

"     V.  Lincoln 26 

' '     V.  Mason 239 

"     z'.  Tyson 36 

Kenyon  v.  Ashbridge 21,  75 

Keran  v.  Trice's  Excrs 237 

Kerr  v.  Kerr 99 

"      7/.  McGuire 141 

Kessel  v.  Albetis 118 

Kibler  v.  Mcllwain 221 

Kidder  v.  Blaisdell 119 

''      z".  Stevens 187 

Kilpatrick  v.  Comm 60,  119 

Kilrow  V.  Comm 29 

Kimball  v.  Morrill 131 

King  V.  Donahue no 

' '     V.  Faber 238 

' '-  V.  Gallun 124 

"     V.  N.  Y.  C.  R.  Co 127 

' '     V.  Richards 192 

"    V.  Ruckman..    233 

"     z/.  State 59 

"    z/.  Worthington 129 

Kingman  v.  Cowles 149 

"        V.  Tirrell 240 

Kingsbury  v.  Moses. .  .127,  138,  219 

Kingsford  w.  Hood 17 

Kingsland  v.  Chittenden 82 

Kingsley  v.  Davis 94 


PAGB 

Kingston  (Duchess  of),  Case. 91,  95, 
99,  205,  261,  262 

Kingwood  v.  Bethlehem 132 

Kinney  v.  Farnsworth 72 

"        !».  Flynn 132 

Kip,  In  re 210 

Kip  V.  Brigham 84 

Kirkstall    Brewery   v.    Furness 

Ry 48 

Kitchen  -■.  Smith 133 

Kittredge  v.  Russell 39 

Klein  v.  Russell 165 

Knapp  V.  Roche 94 

"      V.  Smith 30 

Knight  V.  Clements 158,  159 

"       7'.  Cunnington 64 

"       V.  House 233 

Knights  V.  Wiifen 189 

Knode  v.  Williamson 233 

Knoll  V.  State 83,  103 

Knolls  V.  Bambart 156 

Knox  V.  Wheelock 247 

Kobbe  v.  Price 74 

Koehler  v.  Black  River  Co 155 

Koenig  v.  Bauer 223 

Kolsti  V.  M.  &  St.  L.  R.  Co...     34 

Konitzky  v.  Meyer 95 

Koons  V.  State no 

Koster  v.  Reed 180 

Kramer  v.  Comm 25 

"        V.  Goodlander 72 

Krekeler  v.  Ritter 92,  99 

Kribs  V.  Jones 164 

Krise  v.  Neason 136,  143 

Kurtz  V.  Hibner 168 

L 

Labaree  v.  Wood 197 

La  Bau  v.  Vanderbilt 47 

La  Beau  v.  People 15 

Laclede  Bank  v.  Keeler 233 


TABLE  OF  CASES  CITED. 


xlv 


PACK 

Lacroix  Fils  v.  Sarrazin 121 

Lady  Ivy's  Case 21 

Laird  v.  Campbell 63 

Lake  v.  Clark 26 

Lake  Co.  v.  Young 122 

Lake  Merced  Co.  v.  Cowles. . .   119 

Lamar  v.  Micou 42,  118 

Lamb  v.  Camden,  etc.  R.  Co..   178 

' '      V.  Munster 209 

Lambert  z'.  People 51 

Lanahan  v.  Comm 188 

Land  Co.  v.  Bonner 139 

Landell  v.  Hotchkiss 27 

Lander  v.  Arno 86,  93 

"       V.  People 6 

Landers  v.  Bolton 131 

Lane  v.  B.  &  A.  R.  Co 45 

"      z*.  Cole 140,207 

Lanergan  v.  People 18 

Langhorn  v.  Allnutt 49 

Lanning  v.  Francis 168 

Lansing  v.  Coley 219 

Lame  v.  Rowland 65 

Larum  v.  Wilmer 92 

Lathrop  z'.  Bramhall 138,  164 

Lavin  v.  Emigrant  Sav.  Bk 85 

Lawler  t'.  McPheeters 229 

Lawrence  v.  Farley 155 

"         f.  Hopkins    52 

"         z/.  Kimball 67 

Laws  V.  Comm 56 

Lawson  v.  Bachman 141 

' '       V.  Glass 237,  238 

Lay  Grae  v.  Peterson 45 

Lazier  v.  Westcott.ioo,  120,  122,  144 

Learned  v.  Tillotson 40 

Leas  V.  Wells 190 

Leathers  v.  Salvor  Co 129 

Leavitt  v.  Stansell 227 

V.  Wolcott 86 

Leconfield  £/.  Lonsdale 186 

l,ee  V.  P^ji^ ....,.,.,..,.......  172 


PAGE 

Leeds  v.  Cook 141 

Lefever  v.  Johnson 40 

Lefevre  v.  Lefevre 171 

Leggatt  V.  Tollervey 85 

Legge  V.  Edmonds 184 

Lehigh  R.  Co.  v.  McFarlan  . . .   185 

Lehman  v.  Central  R.  Co 190 

Leland  v.  Cameron 63 

"       V.  Knauth  227 

Lemmon  v.  Moore 212 

Lenahan  v.  People 123,  125 

Lenox  v.  Fuller 233 

Lentz  V.  Wallace 93 

Leonard  v.  Kingsley 232 

"         V.  Pope 31 

Lerned  v.  Jones 162 

Lessee  of  Clarke  v.  Courtney  .   131 

Lessee  of  Rhodes  v.  Selin 208 

Lester  v.  McDowell 222 

Levison  v.  State 53 

Levy  V.  People 96 

Lewis  V.  Eastern  R.  Co 27 

' '      V.  Payn 128 

"       c/.  Seabury 166 

"       C.Sumner 47 

"       f.  Woodworth 47 

Ley  V.  Barlow 207 

Lichtenwallner  t'.  Laubach 32 

Lincoln  v.  Battelle 144,  151 

"        V.  Claflin 10,  30 

"        V.  Taunton  Mf'g  Co  ..   107 

Lindley  v.  Lacey 166 

Linnell  v.  Sutherland 64 

Linsday  v.  People..  16,  22,  106,  112, 
196 

Linsley  v.  Lovely 221 

Linthicum  v.  Ray 180 

"  V.  Remington 204 

Lithographing  Co.  z-.  Kerting..     82 

Little  V.  Herndon 159 

"      7'.  McKeon 199 

Livingston  v.  Arnoux. . .  ,66,  67,  153 


xlvi 


TABLE  OF  CASES  CITED. 


PAGE 

Livingston  v.  Kreisted 194 

V.  Tyler 63 

Logue's  Appeal 162 

Lohman  v.  People 225 

L.  &  S.  W.  Bank  v.  Wentworth  191 

Long  V.  Colton 72 

"      z/.  Drew 240 

*'      v.  Hartwell 164 

"      V.  Spencer 154 

Loom  Co.  v..  Higgins 167 

Loomis  V.  Wadhams 42,  128 

Lord  V.  Bigelow 47 

Loring  v.  Mansfield 89 

"       z/.  Whittemore 128,135 

"       V.   Worcester,    etc.    R. 

Co 27 

Los  Angeles  v.  Melius 87 

Losee  v.  Losee 38 

Lothian  v.  Henderson  90 

Lothrop  V.  Adams 115 

V.  Blake 149 

Lovejoy  v.  Murray 94 

"         z'.  Spafford 189 

Low  V.  Payne  64 

Low's  Case 202 

Lowell  Mfg  Co.  V.  Safeguard 

Ins.  Co 173 

Lowenstein  v.  Carey 140 

Lowery  v.  Telegraph  Co 190 

Lowney  I'.  Perham  210 

Loyd  V.  Hannibal,  etc.   R.   Co.   128 

Luby  V.  Hudson  R.  Co 7 

Lucas  z/.    Brooks 198 

"     V.  De  La  Cour 49 

Luce  V.  Dorchester  Ins.  Co 103 

Lucier  v.  Pierce 165 

Lund  V.  Tyngsborough 7 

Lurtoi^z'.  Gilliam 151 

Lush  V.  Druse 131 

Lyman  w.  Philadelphia 233 

"       w.  State,  etc.   Ins.   Co..   107 
Lyon  V,  Lyon 211 


PAGE 

Lyon  V.  Manning 50 

Lyons  v.  Lawrence 16 

M 

MacDougall  v.  Central  R.  Co.  181 

"            V.   Purrier 187 

Mackay  v.  Easton 83 

Mackie  v.  Story 162 

Mackinnon  v.  Barnes 119 

Maclean  v.  Scripps 129 

Macomber  v.  Scott no 

Magee  v.  Raiguel 43 

Maggi  V.  Cutts 34 

Maguire  v.  Middlesex  R.  Co..  26 

Mahoney  v.  Belford 115 

Maillet  v.  People 17 

Maine  v.  People 9,  60,  61,  68 

Major  V.  State 120 

Malcolmson  v.  O'Dea 250 

Malloney  z'.  Horan 87 

Mallory  v.  Benjamin 208 

V.  Griffey 181 

Malone  v.  Dougherty 164 

Mandeville  v.  Reynolds.  .36,  47,  99, 

128,  13s 

Manke  v.  People 107 

Mann  v.  Langton 249 

"      i*.  Mann 170 

Mansfield  f.  Edwards 162 

Mansfield  Coal  Co.  v.  McEn- 

ery 5 

Marble  z'.  McMinn 82 

March  v.  Comm 119 

Marcly  v.  Shults 238 

Marcy  v.  Barnes in 

"      V.  Dunlap 158 

Marine  Investment  Co.  v.  Havi- 

side 154 

Marks  v.  Townsend 17^ 

Marlow  v.  Marlow 137 

Mc^rsh  z^.  Hand ,,,,,..,,  ;29 


TABLE  OF  CASES  CITED. 


xlvii 


PAGE 

Marshall  v.  Davies 178,  224 

Marsters  v.  Lash  104 

Marston  v.  Downs 136 

Martin  v.  Berens 161 

"      V.  Cole i6i 

"       V.  Cope 78 

"      V.  Good 238,  239 

''      V.  Rector 156 

Marvich  v.  Elsey 77 

Marvin  v.  Richmond 52 

Marx  V.  Hilsendegen 225 

"     t^.  McGlynn 33 

Maryland  v.  Baldwin iii 

Mason  v.  Libbey 139 

• '       V.  Phelps 237 

Masser  v.  Strickland 84 

Massey  v.  Allen 258 

Mast  V.  Perace 163 

Mather  v.  Parsons 127 

Matteson  v.  N.  Y.  C.  R.  Co . . .     32 

Matthews,  In  re  ... , 13,  120 

"  V.  Yerex 198 

Mauri  v.  Heffernan 137 

Maxwell  v.  Chapman 66 

' '         V.  Wilkinson 239 

May  V.  Bradlee 21,  33,  loi 

Maybee  v.  Avery 88 

' '        V.  Sniffen 158 

Mayer  v.  Appel 229 

"       V.  People 28,  30 

Maynard  v.  Buck 34 

Mayo  V.  B.  &  M.  R.  Co 181 

' '      V.   Mayo 209 

Mayor  of  Doncaster  v.  Day 76 

Mayor  of  Swansea  v.  Quirk 204 

McCarthy  v.  Marsh 86 

McCarty  v.  Terry 74 

McCausland  v.  Fleming 72,  82 

McCombs  V.  State 236 

McCormick  v.  Pa.  Cent.  R.  Co.  239 

McCue  V.  Comm 15 

McCurdy's  Appeal 156 


PAGE 

McDonald  t'.  Savoy 34 

McFadden  v.  Kingsbury 138 

McFarlan  v.  Triton  Ins.  Co...  81 
McGoldrick  v.  Traphagen  . .  .64,  65 
McQtath  V.  Clark 160,  190 

"        V.  Seagrave 199 

McGregor  c'.  Wait 45,  133,  141 

McGuire  v.  People 194 

Mcintosh  V.  Lee 123 

Mclntyre  v.  N.  Y.  C.  R.  Co...     78 

McKee  v.  Nelson 102 

McKeen  v.  Gammon 47 

McKeone  v.  Barnes 108 

McKinney  v.  Collins 91 

"  V.  Salem   40 

McKinnon  f.  Bliss... 71,  80,  81,  123 

McKivitt  V.  Cone 239 

McKnight  v.  Devlin 86 

McLain  v.  Comm 77,  106,  243 

McLanathan  v.  Patten 43 

McLaughlin  z/.  Conley 115 

McLean  v.  Fleming 192 

McLellan  v.  Cox 50 

' '         V.  Longfellow 203 

McLeod  V.  Ginther 7 

McMahon  v.  Harrison 34 

"  V.  McElroy 184 

McMakin  v.  Weston 139 

McManus  t'.  Comm 15 

McMicken  v.  Comm 95 

McMillen  v.  Andrews 199 

McMinn  v.  Whelan 131 

McMurray's  Heirs  v.  Erie 187 

McNair  v.  Comm 108 

McPherson  t'.  Rathbone 140 

McReynolds  v.  Longenberger.   156 

Mc Vey  v.  Cantrell 219 

Mead  v.  Husted 27 

Meade  v.  Smith 201 

Meakings  v.  Cromwell 207 

Mechanics'  Bank  v.  Gilson  ....  123 
Me^ch  V,  Buffalo 163 


xlviii 


TABLE  OF  CASES  CITED. 


PAGE 

Melcher  v.  Flanders 130 

Melia  v.  Simmons 85 

Melvin  v.  Melvin 249 

Mercer  v.  Vose 105 

Mercer's  Adm'r  v.  Mackin 70 

Mercer  Co.  v.  McKee's  Adm'r.   167 
Merchants'  Nat.  Bk.  v.  Hall...   118 

Merk  v.  Gelzhaeuser 176 

Merkel's  Appeal 17 

Merluzzi  v.  Gleason 226 

Merrick  v.  Parkman 43 

Merrill  v.  Merrill 240 

Merritt  v.  Cornell 155 

' '       V.  Day 46 

Messner  v.  People 32 

Metzger  v.  Doll 20 

Mey  v.  Gulliman 213 

Meyer  v.  Bohlfing 31 

"       z'.  Huneke 157 

"       V.  Peck 193 

' '      V.  Sefton 138 

Michels  v.  Olmstead 163 

Michigan  Cent.    R.  Co.  v.  Gil- 
bert      26 

Miles  V.  State iii 

"     ^•.  U.  S 175 

Mill  Dam  Co.  v.  Hovey 155 

Miller  v.  Barber 30 

' '       V.  Binder 155 

"      f.  Dungan 98 

"       V.  Gambie 166 

"      z'.  Hale 142 

"       w.  Irish 22 

"      z/.  L.  I.  R.  Co 12 

"      7^.  McKesson ,     30 

"       z/.  Payne 125 

"       z/.  People 55 

"       V.  Stevens 170 

"       V.  Travers 171 

Milliken  v.  Barr 141 

Mills  V.  Barber 178 

'•     f.  Hallock ,,.,,....     13 


PAGE 

Mills  V.  Oddy  , 136 

Milwaukee  R.  Co.  v.  Kellogg  .  103, 

107 

Minet  v.  Morgan 205 

Mink  z^.  State 184 

Missouri  v.  Kentucky 82 

Mitchell  V.  Jacobs 137 

V.  Pitts 218 

' '        V.  Work 116 

Mitchell's  Case 207,  208 

Moats  V.  Rymer 208 

Moett  V.  People 5,  212 

Monfort  v.  Rowland 222 

Monocacy,  etc.  Co.   v.  Ameri- 
can, etc.  Co 45 

Monroe  v.  Douglas  118 

Montgomery  i'.  Montgomery  . .   184 

"  V.  Pickering 203 

"  V.  State 62 

Montville  v.  Haughton 155 

Moody  V.  Rowell 225 

"       z;.  State 118 

"       z/.  Tenney 31 

Mooers  v.  Bunker 74 

z-.  Moor 114 

Moore  v.  Hamilton 42 

"      z'.  Livingston 131 

"       z'.  Meacham 7i  22 

"       V.  Moore 78 

' '       z'.  People 227 

Moots  V.  State 64,  238,  239 

Moran  v.  Prather 167 

Morehead  v.  State 53 

Morehouse  z^.  Mathews 102 

Moreson  v.    Northwestern  Ins. 

Co 176 

Morford  v.  Peck 232 

Morgan  v.  Burrows 169 

"        V.  Griffiths 166 

"        V.  People 129 

V.  Railroad  Co 188 

!■        ^.Roberts 199 


TABLE  OF  CASES  CITED. 


xlix 


PAGE 

?vIorgan's  Assignees  v.  Shuni  . .  162 

Moriarty  ;■.  L.   C.  &  D.  R.  Co.  16, 

44.  255 

Morley  v.  Green 207 

Morrill  v.  B.  &  M.  R.  Co 141 

"       V.  Foster 74 

"       I'.  Robinson 128 

Morris  v.  Budlong 162 

"      V.  Davies 184 

V.  French 14 

"      V.  Harmer 81 

V.  Miller    iii 

I'.  Patchin 147 

' '      V.  White 213 

Morris's  Appeal 168 

Morrison  v.  Chapin 237 

Morrow  v.  Comm 141 

Morse  v.  Hewett 122 

"       -'.  Minn.,  etc.  R.  Co....  24 

"       I'.  Stearns 169 

Morss  V.  Morss 199 

' '      V.  Palmer 234 

"      V.  Salisbury 42 

Mortimer  v.  McCallan 137 

Moseley  v.  Mastin 123 

Mosley  v.  Vermont,   etc.    Ins. 

Co IIS,  234 

Motley  V.  Head 222 

Mott  V.  Consumers'  Ice  Co 39 

"    V.  Richtmyer 153,  161 

Mowatt  V.  Carow 168 

Mowry  v.  Chase 104 

"       V.  Smith 224 

Muggleton  t'.   Harnett 13 

Muldowney  i*.  111.  Cen.  R.  Co.  103 

Mulford  V.  MuUer 203 

Mullen  V.  St.  John 178 

Muller  V.    St.    Louis   Hospital 

Ass'n 225 

Mumford  v.  Bowne 121 

Munn  V.  Godbold 135,  138 

Munshower  v.  State 83 


PAGE 

Munson  J'.  Atwood 176 

Murphy  v.  People 14,  22,  56 

' '       T'.  Purdy 219 

I'.  State 53.55.56 

Murray  v.  Chase 15,  47 

' '       V.  Deyo 84 

"       I/.  Elston 140 

"       V.  Green 98 

' '       V.  Murray 177 

V.  N.  Y.  Life  Ins.  Co..   178 

Musselman  v.  Wise 125 

Mutual  Ins.  Co.  v.  Morris 188 

"    V.  Tisdale...85,  86 
95.  96 

N 

Nance  v.  Lary 189 

Nason  v.  Jordan 139 

National  Bank  7/.  Bangs 191 

Naugatuck  Co.  v.  Babcock  . . .   136 
Naumberg  v.  Young..  161,  163,  166 

Nealley  v.  Greenough 137 

Needham  r-.  Bremner 85 

Needles  v.  Hamfan 173 

Neel  V.  Potter 33 

Neely  v.  Neely 38,  131 

Neese  v.  Farmers'  Ins.  Co 104 

Negley  v.  Jeffers 164 

Neil  V.  Case 159 

"     V.  Jakle 18 

Nelson  v.  Sun  Ins.  Co 105,  167 

Nepean  v.  Doe 184 

"        7/.  Knight 184 

Nesbit ,  III  re 177 

Nettles,  Ex  parte .•    61 

Nevling  v.  Comm 5,  175 

Newcastle   (Duke  of)    v.  Bro.v- 

towe 73 

Newcomb  v.  Griswold  228 

Newell  V.  Carpenter 92 

V.  Nichols 185 

N.  H.,  etc.  R.  Co.  v.  Goodwin.     63 


TABLE  OF  CASES  CITED. 


N.  J.  Exp.  Co.v.  Nichols i8i 

Newlin  v.  Lyon 43 

Newman  v.  McComas 46 

New  Orleans,  The 50 

Newton  ?'.  Chaplin   140 

"       V.  Porter 219 

N.  Y.  Inst,  for  Blind  v.  How's 

Excrs 169 

Nichols  V.  Allen 134 

V.  Haynes 64 

V.  Iron  Co 136 

V.  Nichols 100 

V.  Webb 63 

V.  White 46 

Nicholson  v.  State 54 

V.  Waful S 

Nicolay  v.  Unger 127 

NicoU  V.  Burke 128, 162 

Niskayuna  v.  Albany 139 

Nixon  7^.  Palmer 187 

Noble  V.  Ward 267 

Noden  v.  Murray 129 

Noonan  v.  State 103 

Norris  v.  Spofford 20 

North  Brookfield  v.  Warren. 74,  76, 

137 
N.    &   W.    Branch    R.    Co.    v. 

Swank 165 

Northrop  v.  Hale 74,  75 

Northumberland    Co.    v.    Zim- 

mermann 14S 

Norton  v.  Huxley 93 

Norwich  Co.  v.  Flint 6 

Nudd  V.  Burrows 10 

Nunes  v.  Perry 109 


Oakland  Ice  Co.  v.  Maxcy 224 

Oaksmith's  Lessee  !».  Johnston.   185 

Ocean  Bk.  v.  Carll 64 

Ocean  Beach  Ass'n  v.  Brinley  .     13 


PAGE 

Ochsenbein  z'.  Papelier 99 

O'Connell  v.  People 175,  178 

O'Connor  v.  Chicago,  etc.   R. 

Co 7 

Odiorne  v.  Marine  Ins.  Co 167 

O'Gara  v.  Eisenlohr 185 

Ogletree  v.  State 178 

Ogsbury  v.  La  Farge 87 

Ohio  i".  Hinchman      .    118 

Olcott  V.  Tioga  R.  Co 36 

Oldtown  V.  Shapleigh 72 

Oliver  v.  Bennett    47 

Olmsted  v.  Gere 105,  107 

Omichund  v.  Barker 215 

Opinion  of  Justices 118,  122,  124 

Oppenheim  v.  Wolf 124 

Ordway  v.  Haynes 83 

Oregon  Steamship  Co.  z/.  Otis.    129 

Organ  v.  Stewart 164 

Ormsby  v.  People 11 

O'Rourke  z/.  O'Rourke ....  212 

Osborn  z^.  Pell 78 

Oscanyan  v.  Arms  Co 47 

Osgood  V.  Coates 12 

"        z'.  Manhattan  Co 47 

"        z'.  Nichols 191 

Otis  V.  The  Rfo  Grande 97 

O'Toole,  III  re 207 

Ottawa,  etc.    R.  Co.  v.  Hall...   163 

Otterson  v.  Hofford 38 

"  V.  Middleton 99 

Owen  V.  Cawley 40,  47 

P 

Pacific  Gas  Co.  v.  Wheelock  . .  104 

Packard  v.  Reynolds 199 

Packer  v.  Steward 164 

Packet  Co.  v.  Clough 6 

"         "    V.  Sickles 201 

Paddock  v.  Forester 52 

I         "        ?/.  Salisbury ,,,,  n6 


TABLE  OF  CASES  CITED. 


Page  V.  Cole 164 

Paige  V.  Carter 238 

Paine  v.  Ins.  Co 118 

"      V.  Jones 157 

' '      V.  Upton 162 

Palleys  v.  Ocean  Ins.  Co 219 

Palmer  v.  Albee 167 

"       V.  Crook 32 

"        I'.  Trower 227 

Papendick  v.  Bridgewater 70 

Parke  v.  Neely 153 

Parker  v.  Butterworth 46 

"       f.  Foote 186 

Parks  V.  Loomis 169 

"      V.  Mosher 94 

Parnell  v.  Hahn 86 

Paromore  v.  Lindsey 158 

Parr  v.  Greenbush 145 

Parrashick,  The 104 

Parsons  z/.  Mfrs.  Ins.  Co 238 

Passmore  v.  Passmore's  Estate  205 

Patten  v.  Elevated  R.  Co 122 

' '       V.  Moor 205 

Patterson  v.  Gaines 183 

' '  V.  Tucker    134 

Paul  V.  Rider 162 

Paulk  V.  State 23 

Payne  v.  Hodge 66 

' '       V.  State 229 

Payson  v.  Lamson 163 

Pearce  v.  Cooper 133 

''       V.  Langfit 122,  124 

Pears  v.  Wilson 68 

Pearse  v.  Pearse 205 

Pearson  -'.  Pearson 76 

Pease  v.  Shippen 115 

Peck  V.  Brewer 201 

"     V.  Callaghan no 

' '     V.  Lake 239 

"     f.  Valentine 239 

Pelletreau  v.  Jackson 131 

Pells  V.  Webquish 80,  187 


Pendleton  f.  Empire,  etc.  Co..  229 

Pennoyer  v.  Neff .91,  100 

Pennsylvania  Co.  v.  Conlan 212 

Pennsylvania  R.  Co.  v.  Fortney  230 
''  "        V.  Strana- 

han 27 

Penny  v.  Corwithe 157 

Pennywit  v.  Foote 99 

People  V.  Ah  Fat 234 

"       V.  Ah  Fook 14 

"       V.  Ah  Lee 7 

"       z/.  Aleck 10 

"       z'.  Alivtre 14 

"       z'.  Amanacus 234 

' '       V.  Arnold 10,  11 

' '       V.  Augsbury 105 

"       z/.  Baker 85,90 

''       V.  Bank  N.  America...   190 

' '       V.  Beach 38,  224 

' '       V.  Beck 209,  233 

"       V.  Benson 236 

"       V.  Blakely 203 

"       V.  Boscovitch 220 

' '       V.  Brown 209 

"       V.  Buckland 94 

' '       V.  Burns 245 

"       V.  Carney 23 

"       V.  Carrier 31 

"       z/.  Casey 209,226 

' '       V.  Chee  Kee 123 

"       V.  Chin  Mook  Sow  ..61,  237 

"       z/.  Chung  Ah  Chue 77 

"       z/.  Cole 222 

"       Z'.  Collins 97 

' '       V.  Cotta 237 

"       f.  Courtney ig6 

z/.  Cox 55 

'■       V.  Crapo 227 

"       V.  Davis 6,9,10,60,62 

"       V.  Dawell 99 

"       f.  Denison 82,93 

"       z'.  Dennis 20 


lii 


TABLE  OF  CASES  CITED. 


People  V.  Devine 229 

"  z/.  Devlin 118 

' '  V.  Dibble 29 

"  V.  Dohring 199,  201 

'*  V.  Dowling 196 

"  V.  Doyell 201,  235 

' '  V.  Eastwood loi 

"  z*.  Fair 113 

"  z'.  Feilen 177,185 

"  z;.  Finley 175 

"  V.  Fire  Ins.  Co 75 

"  V.  Freshour 209 

' '  V.  Gates 206 

V.  Gay 234  j 

"  V.  Gelabert 53  j 

' '  V.  Gibbs 24  I 

"  V.  Gonzalez 127 

' '  V.  Gray 61 

"  V.  Grunzig 62  ; 

i;.  Hall 82  I 

"  V.  Hennessy 53  j 

"  V.  Henssler 30 

"  V.  Hovey  220  i 

"  V.  Hoy  Yen 56 

"  V.  Hulbut 201,  202  j 

"  z/.  Hunt 201 

"  V.  Irving 226  ! 

"  ».  Jackson  215 

"  z/.  Jacobs 230 

"  71.  Johnson 93 

"  V.  Keith 245 

"  V.  Kelley 58,  209 

"  V.  Knapp 61,  227 

"  z;.  Knickerbocker 6i 

"  f.  Lake 1061 

"  V.  Lane 53 

"  z'.  Langtree 196,1981 

"  V.  Laurence 237 

"  w.  Mahaney 118 

"  V,  Manning 227 

"  V.  Markham 233 

"  V,  Mather. 224,  22^,  233,  234 


PAGE 

People  V.  Matteson 195 

"       V.  McGloin 55,  58,  195 

"       w.  McGowan 86 

"       V.  Mead 25,113 

"       z'.  Miller 119,223 

"       z/.  Montgomery 102 

"       V.  Morgan 112 

' '       V.  Murray 92 

"       z'.  Nevins 119 

' '       V.  Newman 77 

"       z*.  N.  Y.  Hospital 194 

"       V.  Niles 5 

' '       V.  Noelke 225 

"       i-.  Nyce i8i 

"       z'.  Overseers,   etc 184 

"  V.  Oyer  &  Term.  Court.  36, 
223,  225 

"       V.  Parish 225 

' '       V.  Parton 52 

7'.  Phillipps 54 

"       V.  Ramirez 59 

' '       t'.  Rathbun 16 

"       V.  Robinson 59 

' '       V.  Rolf e loi 

' '       V.  Ruloff 53 

V.  Ryland 188 

' '       V.  Shattuck 202 

' '       V.  Shaw 60 

"       z/.  SherifT 208 

"       z".  Shulman 28,30,33 

"       z*.  Simpson  9,59,61 

V.  Sligh 77 

"       V.  Snyder 122,  153 

"       z'.  Soto 54,212 

"       z/.  Stephens 47i  87 

"       z'.  Stevens 53 

"       V.  Stone 213 

"       V.  Suppiger 122 

"       z'.  Swinford 179 

z'.  Taylor 58,60,61 

"       V.  Thayer 58 

"       z/.  Thrall 53 


TABLE  OF  CASES  CITED. 


liii 


People  V.  Tyler 233 

"       V.  Velarde 71 

"       I/.  Walker 139 

"       V.  Walsh 219 

"       V.  Ward 56 

"       V.  Welsh 16 

^   Wentz 54.59 

"       I/.  Wheeler 82,238 

"       V.  White 113 

"       z/.  Willett 18 

"       V.  Wilson 179 

"       V.  Wolcott 55 

"       7/.  Wreden loi 

V.  Zeyst 81 

Peoples  v.  Evening  News 176 

Pepin  V.  Lachenmeyer 147 

Perkins  v.  Augusta  Ins.  Co 63 

"       z'.  Stickney 105 

Perrine  v.  Cooley's  Excrs 164 

Perry  v.  Bailey 201 

"      V.  Dickerson 95 

"      V.  Lovejoy 32 

"      V.  Randall 198 

"      V.  Simpson,  etc.   Co.  ..40,  47 

Petch  V.  Lyon 49 

Peter  v.  Thickstun 83 

Petershine  v.  Thomas 86 

Petrie  v.  Nuttall 96 

Peugh  V.  Davis 162 

Phelin  v.  Kenderdine 209 

Phelps  V.  Hunt 142 

"      V.  Nowlen 186 

' '      V.  Prew 208 

Phene's  Trust,  In  re 184 

Phenix  v.  Castner 228 

Phil.  R.  Co.  V.  Henrice 20 

Phila.,  etc.   R.   Co.  v.  Anderson  178 
"  "       *'     "    V.  Hickman  109 

"  '    w.  Howard.     79 

"  "       "     "    V.  Lehman.   123 

Philbrook  v   Eaton 162 

Philips  V.  Bury 85 


PAGE 

Phillips  V.  Allen 183 

"       w.  Jamieson 93 

"       V.  Mahan 68 

"        V.  McCombs 170 

"       f.  Middlesex 43 

"       w.  Thorn 234 

Philpot  V.  Gruninger 153 

Pickard  v.  Bailey 104 

"        z*.  Sears 189,271 

Pickens  v.  Davis 70 

Pickering  v.  Noyes 206 

"  V.  Reynolds  42 

Picton's  Case 103 

Pidcock  t'.  Potter loi,  105 

Pier  V.  Duff 43,  47 

Pierce  v.  Indseth 104,  121 

"       V.  Pierce 21 

Piers  V.  Piers in 

Pierson  v.  Atlantic  Bk 36 

"       V.  Freeman 218 

"       V.  People 15,  25,  206 

Pigott's  Case 157 

Pim  V.  Currell 73 

Pinney  v.  Andrus 238 

"       V.  Cahill 83 

Pipe  V.  Fulcher 73 

Piper  V.  Chappell 120 

Pitcher  v.  Clark 219 

Pitts  V.  State 247 

' '     V.  Wilder 42 

Pittsburg,  etc.    R,   Co.   v.    An- 
drews . .  229 
"  "  'o.  Rob- 

inson...  102 

Place  V.  Gould 17 

"     V.Minster 11 

Plate  z/.  N.  Y.  C.  R.  Co 92 

Platner  v.  Platner 39,  221 

Plaxton  V.  Dare 73 

Player  v.   Burlington,    etc.    R. 

Co 225 

Pleasants  v.  Fant 46 


liv 


TABLE  OF  CASES  CITED. 


PAGE 

Plumer  v.  Briscoe 133 

Plummer  v.  Currier 52 

Plunkett  V.  Cobbett 200 

Pocock  V.  Billing 44 

Poignard  v.  Smith 139 

Pollock  V.  Hoag 199 

"       V.  Pollock 230 

Polston  V.  See 176 

Pontius  V.  People 14,  20 

Poole  V.  Warren 133 

Pope  V.  Allen 194 

"      V.  Devereux 48 

Porter  v.  Judson 63 

"       7/.  Waring 117,122 

"       !».  Wilson 131 

Porter's  Appeal 169 

Portland  v.  Richardson 94 

Post  V.  Supervisors 145,  151 

Poteete  v.  State 62 

Potter  V.  Deyo 181 

"       f.  National  Bank 194 

"       ',.>.  Ware 199 

Powell,  Ex  parte 13,  120 

Powers  V.  Gary 235 

V.  Chelsea  Sav.  Bk  . . .     88 

Pratt  ?/.  Andrews ..   115 

"     V.  White 64,  65 

Pratt's  Adm'rs  i'.  U.  S 163 

Preston  v.  Bowers 32 

Preston's  Case 31 

Prevot  V.  Lawrence 190 

Price  V.  McGoldrick 36 

"      w.  State 59 

"      i".  Torrington 65,258 

Priest  V.  Groton 105 

Prince  v.  Skillin 118 

Prindle  v.  Glover 21 

Pringle  v.  Leverich 46 

"       V.  Pringle 153,  222 

z/.  Woodworth 100,187 

Pritt  V.  Fairclough 65 

Proctori'.  Bigelow iii 


PAGE 

Providence  Tool  Co.  v.   U.   S. 

Mfg.  Co 127 

Prudential    Assurance    Co.    v. 

Edmonds 184 

Pulford's  Appeal 208 

Pullen  V.  Hutchinson 134 

Pulliam  TA  Penseneau 199 

Putnam  v.  Bond 169 

"        57.  Clark 88,159 

"         z/.  Sullivan 189 

Pym  V.  Campbell 166 

Q 

Quackenbush  v.  Ehle 87 

Queen's  Case 232,  250,  279 

Queen's  Proctor  v.  Fry 80 

Quick  V.  Quick 71 

Quidort's  Adm'r.  v.  Pergeaux. .     85 

Quigley  v.  De  Haas  164 

Quin  V.  Lloyd 222 

Quincey  v.  White 20 

Quinlan  v.  Utica 26 

Quinley  v.  Atkins 141 

Quinn  v.  Halbert 195 

"       V.  Quinn 88,  159 

Quinsigamond  Bk.  v.  Hobbs..   233 

R 

Radcliff  z'.  Ins.  Co 80 

Radcliffe  v.  Fursman 205 

Rae  V.  Beach 48 

Railroad  Co.  z/.  Bk.  of  Ashland.   117 
"  "     z'.  Cunnington. . .     81 

"  "     V.  Nat.  Bk 90 

Railway  Co.  v.  Cronin 141 

Randall  v.  Lynch 132 

Randegger  v.  Ehrhardt 43 

Rankin  z*.  Blackwell 35 

Ransom  v.  Wheeler 147 

Rapalye  v.  Rapalye 168 


TABLE  OF  CASES  CITED. 


Iv 


RatclifF  V.  Wales 197 

Rathbone  v.  Hooney 93 

kau  V.  People 124 

Rawley  v.  Brown 188 

V.  Doe 133 

Rawson  v.  Haigh 18 

Raynes  ;'.  Bennett 21,  198 

Rea  V.  Tucker 197 

Read  v.  State 14 

Readman  v.  Conway 40 

Real  V.  People  226 

Rearden  v.  Minter 133 

Rector  z*.  Comm 56 

Redd  V.  State 54,  56 

Reddington  v.  Gilman 139 

Redlich  v.  Bauerlee 65 

"        V.  Doll 160 

Reedz^.  N.  Y.  C.  R.  Co.. 20 

"      f.  Spaulding 235 

"      t-.  U.  S 168 

"      I/.  Wilson 117 

Reeder  z/.  Holcomb 127 

Reese  v.  Reese 108 

Reeve  v.  Wood 196 

Reffell  V.  Reffell 162 

Regan  v.  Dickinson 31 

Reinhart  v.  People 15 

Reitz  V.  State 23 

Remington  Co.  v.  O' Dougherty  153 

Remsen  v.  People 6,  113 

Ressequie  v.  Byers 89 

R.  V.  249 

V.  Adamson 174 

V.  All  Saints,  Worcester  . . .  210 

V.  Baker 258 

V.  Baldry 54,  =57 

V.  Barnard 21 

V.  Bathvvick 209 

V.  Bedingfield 7,  9 

V.  Bembridge xvii 

V.  Blake 11 

V.  Bliss 73 


PAGE 

R.  V.  Boswell 56 

.  Boyes 209 

.  Butler 179 

.  Canning 36 

.  Castleton 138 

,  Cheadle 173,  270 

.  Chidley  &  Cummins 58 

.  Clapham 66 

.  Clarke 235 

.  Clewes 15,  57 

.  Cliviger 209,  210 

.  Cole 24 

.  Cooper 29 

.  Cresswell 187 

.  Davis 29 

,  Donellan  21 

.  Doolin 222 

,  Dove 106 

,  Drummond 237 

.Dunn 29 

.  Edmunds 18 

.  Eriswell 76 

.  Exeter 70 

.  Fennell 54 

.  Forster 29 

.  Foster 9 

.  Fowkes 8 

.  Francis 29,  30 

.  Francklin 80 

.  Garbett 58,  209 

.  Garner 35,  252 

.  Gazard 198 

•  Geering 35 

.  Gilham 57 

.  Gordon 159 

.  Gould 57 

■  Gray 35,  253 

.  Griffin 276 

.  Halliday 210 

.  Harborne 184 

.  Hardy 11,  200 

.  Harringworth 132,  264 


Ivi 


TABLE  OF  CASES  CITED. 


PAGE 

R.  V.  Hartington  Middle  Quar- 
ter      88; 

.  Haworth 136  j 

.  Heyford 69  j 

.Hind 62 

•  Hogg 76 

.  Holmes 235 

.  Holt 30 

.  Home  Tooke 109 

.  Hull 167 

.  Hutchins 88 

.  Hutchinson 62 

.  Jarvis 54,  181 

.  Jenkins 62 

.  Llanfaethly 140 

.  Lloyd 57 

.  Lord  George  Gordon 21 

.  Lord  Thanet 274 

.  Luffe 184 

.  Lumley 184 

.  Mainwaring iii 

.  Mansfield 184 

.  Martin 235 

.Mead 62 

.  Moore 57 

.  Mosly 62 

.  Oddy 29 

.  Orton 82,  226 

.  Palmer 15,  32,  106,  107 

.  Parbhudas  and  Others . . .  248 

.  Patch 15 

.  Payne 195 

.  Pike 237 

.  Reeve 54 

.  Richardson 35,  200,  201 

.  Robinson 58 

.  Rowton 114,  262 

.  Russell 274 

.  Scaife 76,  77,  241 

.  Scott 58,  210 

.  Sparkes 275 

.  Stephenson 241 


PAGE 

R.  V.  Stone 181 

' '   V.  Sutton 80 

"    y.  Tait 242 

"   z'.  Thompson 195 

' '   V.  Thornhill 125 

"    V.  Turberfield 114 

' '    V.  Turner 96 

"    V.  Twyning 177 

"   V.  Walker 19,  251 

' '   V.  Warwickshall 57 

' '   V.  Watson 129,  135 

' '   V.  Webb 194 

' '   V.  Weeks 29 

"   I'.  Whitehead 222 

"   f.  Widdop 58 

"    z/.  Wiltshire 177 

"   V.  Wood 19 

"   f.  Woodcock 63 

Reynolds,  In  re 209 

Reynolds  v.  Manning 52,  64 

"         V.  Robinson 102,  170 

"       J'U.  s ^^ 

Rhine  v.  Robinson 78 

Rhodes  v.  Seibert 137 

Rice  V.  Comm 211,  220 

' '     V.  Rice loi 

Richards  v.  Skiff 131 

Richie  v.  State 236 

Rider  v.   Legg 131 

"      V.  White 30 

Riggs  V.  Pursell 87 

' '       V.  Tayloe 139 

Riley  v.  Suydam 49 

Ripley  v.  Burgess 119 

Ripon  V.  Bittell 83 

Risley  v.  Phenix  Bank... 90,  98,  166 

Roady  v.  Finegan 209 

Roath  V.  Driscoll 186 

Robards  v.  Marley 104 

Robb  V.  Hackley 235 

Robb's  Appeal 197 

Robbins  v.  Chicago 94 


TABLE  OF  CASES  CITED. 


Ivii 


PAGE 

Robbins  f.  Robbins 211 

"        7'.  State 60 

Roberge  I'.  Burnham     '176 

Robert  ?■.  Good 132 

Roberts  -'.  Chittenden 177 

V.  Doxen 138 

V.  Johnson 105 

V.  Medbery 43 

V.  Noyes 191 

V.  Ogdensburgh,     etc. 

R.  Co 128 

V.  Orr 86 

V.  Spencer 139 

V.   State 14 

V.   Walley 218 

Roberts'  Will,  In  re 19,  104 

Robertson  i*.  Bullions 171 

V.  Hay 158,  160 

Robinson  v.  Adams 33 

"         7'.  Brown 119 

V.  F.  &  W.  R.  Co...     34 

"         V.  Marks 87 

"         V.  Myers 158 

"         V.   Randall 176 

"         V.  State  19 

I'-  U.  S 13.  213 

"         V.  Yarrow 191 

Rockwell  V.  Taylor 7,  47 

Roderigas  v.   East    River   Sav. 

Inst 85,  97 

Rodgers  v.  State 119 

"        V.  Stophel 4 

Roe  d.  West  v.  Davis 128 

Rogers  v.  Allen 12 

"       I'.  Anderson 48 

"       f.  Andrews    47 

''       V.  Greenwood 47 

'■       V.  Gwinn 100 

' '       V.  Ritter log 

' '       V.  Zook 104 

Romertze  v.  East  River  Bk 232 

Roosa  V.  Boston  Loan  Co 32 


PAGE 

Root  V.  Hamilton 226 

"      z'.  King 80,116,151 

"      V.  Wright 202,  204 

Rose  V.  Chapman 45 

"      V.  Himely   84 

Roseboom  v.  Billington 68 

Rosenthal  v.  Walker 37 

Ross  V.  Ackerman 34 

"     V.  Boswell 123 

"     t'.  Doland 189 

"     z*.  Wood 99 

Roth  V.  Roth 100 

Rothrock  v.  Gallaher 230 

Rothschild  v.  Amer.  Ins.  Co...   176 

Rounds  V.  McCormick 127 

Rousillon  V.  Rousillon 99 

Rowand  v.  Finney 162 

Rowley  v.  L.  &  N.  W.  Ry....    105 

Royal  Ins.  Co.  v.  Noble 210 

Ruch  V.  Rock  Island 78 

Ruckman  v.  Decker 45 

Ruddell  V.  Fhalor 189 

Rufer  V.  State 54 

RulofTs  Case 16 

Rumsey  v.  Lovell 240 

Runyan  v.  Price 231 

Rusling  z".    Bray 225 

Russell  V.  Church 163 

V.   Hallett 185 

"        V.  Hudson  Riv.  R.  Co.  237 

"        7'.  Place 93 

Rutland  v.  Page 155 

Ryall  V.  Hannam 172 

Ryan  v.  Merram 41 

z^.  People IS 

Pyerson  v.  Abington 231 

Ryerss  v.  Wheeler 168,  170 

S 

Sage  V.  Harpending 98 

Sailor  v.  Hertzogg la 


Iviii 


TABLE  OF  CASES  CITED. 


PAGE 

St.  John  V.  Amer.  Ins.  Co 134 

"         V.  Croll 146 

St.  Louis  Ins.  Co.  v.  Cravens..     94 
St.   Luke's    Home   v.  Assn.  for 

Females 169 

Samuels  v.  Borrowscale 144 

Sanderson  v.  Coleman 191 

V.  Peabody 86 

Sandifer  v.  Hoard 43 

Sandilands,  In  re 155 

Sargeant  v.  Sargeant 41 

Sargent  v.  Adams 169 

' '        V.  Wilson 233 

Saunders  v.  McCarthy 47 

Savage  v.  O'Neil 104 

Saveland  v.  Green 129 

Sayles  v.  Briggs 85 

Sayres  v.  Comm 15 

Schafer  v.  Schafer 199 

Schall  V.  Miller 199 

Scharff  v.  Keener 76,  156 

Schaser  v.  State 223 

Schell  V.  Plumb 83 

Schisby  v.  Westenholz 99 

Schlicht  V.  State 124 

Schmidt  f.  N.  Y.,  etc.  Ins.  Co.   176 

Schmied  v.  Frand 198 

Scholfield,  Ex  parte 210 

Sch.  Freeman  v.  Buckingham.   193 

Schrauth  v.  Dry  Dock  Bk 93 

Schroeder  w.  Railroad  Co 128 

Schultz  V.    Third    Avenue    R. 

Co 226,  228 

Schuylkill  Co.  v.  Copley 195 

Scotia,  The 121 

Scott  z*.  Pentz 141 

"     V.  People 60 

"     V.  Sampson 115 

"     t/.  Waithman 133 

"     V.  Williams 218 

Scovill  V.  Baldwin 220 

Searcy  v.  Miller 195 


PAGE 

Searight  v.  Craighead 46 

Sears  v.  Wingate 192 

Second  Nat.  Bk.  v.  Ocean  Nat. 

Bk 94 

Secor  V.  Sturgis 86 

Secrist  v.  Petty 125 

Seeley  f.  Engell 222 

Selden  v.  Canal  Co 146 

Selkirk  v.  Cobb 222 

Selover  y.  Rexford's  E.xcr 237 

Servis  v.  Nelson 131 

Sewell  V.  Gardner 230 

Se.xton  -'.  Bridgewater 102 

Seybolt  iv.  N.  Y.,  etc.   R.  Co..    176 

Seymour  z^.  Fellows 103,  105 

Shaffer  v.  Shaffer 68 

Shaffner  v.  Comm 25 

Shailer  v.  Bumstead ■^2>^  42,  47 

Shaughnessy  v.  Lewis 162 

Shaw  V.   Emmery 233 

' '      V.  Mason 137 

"      W.Tobias 117 

Shawneetown  v.  Mason loi 

Sheaffer  v.  Eakman 42 

Sheen  v.  Bumpstead 31 

Shelburne  Falls  Bk.  v.  Towns- 
ley 36 

Sheldon  v.  Benham 63 

"       z/.  Patterson 92 

V.  Wright 98 

Shelp  V.  Morrison 140,   141 

Shepard  z'.  Potter 221 

Shephard,  In  re 140 

Shepley  v.  Waterhouse 46 

Sheppard  v.  Giddings 139 

"         V.  Yocum 229,  234 

Sheridan  v.  New  Quay 192 

Sherman  v.  People 128 

"        V.  Wilder 33,  162 

Sherwood  v.  Pratt 130 

"  V.  Sherwood  ....165,  168 

"  V.  Titman 31 


TABLE  OF  CASES  CITED. 


PAGE 

Shields  v.  Boucher 260 

Shifflet  V.  Comm 55 

Shinkle  v.  Crock 108 

Shirts  V.  Overjohn 189 

Shockey  v.  Miles 127 

Shoemaker  t'.  Benedict 46 

Short)  V.  Kinzie no 

Shore  v.  Wilson 171 

Shorey  v.  Hussey 230 

Short  V.  Lee 258,  259 

Showalter  v.  State 196 

Shrewsbury  Peerage  Case 74 

Shriedly  v.  State 29 

Shufflin  V.  People 5 

Shuler  v.  Gillette 160 

Shurtleff  v.  Parker 227 

"        V.  Willard 222 

Shuttle  V.  Thompson 71 

Sibley  v.  Waffle 204 

Sill  V.  Reese 109 

Simmons  f.  Havens   131 

"         V.  New  Bedford,  etc. 

St.  Co 100 

"  V.   Rudall 159 

Simpson  v.  Dall 136 

"        f.  Dix 42,  44 

"        i".  Westenberger 115 

Sims  V.  Sims 95,  195 

Sinclair  v.  Baggallay 154 

"        I/.  Murphy 191 

Singer  Mf'g  Co.  v.  Mcf'arland.   no 
Sisson  V.  Cleveland,  etc.  R.  Co.     83 

Sitler  V.  Gehr 66,  75,  76 

Skilbeck  v.  Garbett 36 

Slade  1'.  Leonard 41 

Slane  Peerage  Case   143 

Slasser  v.  Burlington 77 

Slatterie  v.  Poolcy 128 

Slingerland  v.  Bennett 31 

Sloan  V.  Edwards.  227,  229,  233,  234 

"      V.  N.  Y.  C.  R.  Co 230 

Slocumb  V.  Railroad  Co 188 


Slossen  v.  Railroad  Co 27 

Small  V.  Comm 61 

Smith  V.  Aldrich 50 

"       V.  Beattie 162 

"       V.  Blakey 66 

"       V.  Cawlin 132 

"       V.  Chapin 84 

' '       V.  Collins 45 

"      I/.  Comm 55,56 

' '       V.  Easton 129 

"       V.  Ehanert 230 

"       V.  Floyd 13 

' '       V.  Forbes 212 

"       V.  Forrest 72,  73 

' '       V.  Frankfield 98 

"       V.  Hickenbottom loi 

' '       V.  Law 64,  66 

"       V.  Long 204 

"       V.  McCool 87 

"       V.  McGovvan 158 

"       f.  McNeal 87 

' '       V.  Morgan 44 

"       V.  N.  Y.  C.  R.  Co 133 

"       V.  Porter 153 

"       I/.  Sac  Co 178 

"       V.  Shoemaker 153 

"       V.  Smith 86,  172 

"       V.  Whippingham 50 

"       V.  Wilson 170 

' '       V.  Yaryan 236 

Snow  V.  B.  &  M.  R.  Co 102 

' '      V.  Gould 204 

Snyder  f.  Comm 114 

"        V.  McKeever 109 

' '       V.  Winsor 68 

Sohns  V.  McCulloh 47 

Somerville,     etc.     R.     Co.     v. 

Doughty 223 

Soper  1'.  Buffalo,  etc.  R.  Co...  45 

Souder  v.  Schechterly 43 

South  V.  People  S3 

South  Bend  c^.  Hardy  226,  236 


TABLE  OF  CASES  CITED. 


PAGE 

S.  W.  School  Dist.  v.  Williams.  72 

Southwark  Bank  v.  Comm 151 

Southwick  V.  Stevens 129 

Soutier  v.  Kellerman 170 

Spalding  v.  Hedges 81 

Spangler  z^.  Jacoby 80 

Spargo  V.  Brown 256 

Spatz  V.  Lyon   38 

Spaulding  v.  Hallenbeck 41 

"          V.  Hedges 83 

"  y.  Vincent 104,144 

Spears  v.  State 55 

Specht  V.  Howard 222 

Sperry  v.  Moore's  Estate 222 

Spitley  V.  Frost 87 

Spring  Co.  v.  Edgar 103 

Spring    Garden    Ins.    Co.    v. 

Evans 239 

Spring  Run  Co.  v.  Tosier 87 

Squire  v.  State 177 

Stacy  V.  Graham 231 

Stalker  v.  State 29 

Stanbro  v.  Hopkins 195 

Stanton  v.  Crosby 99 

Stanwood  v.  McLellan 239 

Stape  V.  People 211,  234 

Stapleton  v.  King 201 

Starin  v.  Genoa 45 

Staring  v.  Bowen 156 

Starkey  v.  People 61,  62 

Starks  v.  People 234 

Starkweather  v.  Martin 155 

State  V.  Able 77,  78 

V.  Albert 53 

V.  Alexander 14 

V.  Alford 224,  245 

V.  Allen 211 

V.  Arnold 10 

zr.  B.  &  P.  R.  Co 181 

V.  Barrowes 196 

V.  Bartlett 179 

V.  Benner 202,  224,  227 


PAGE 

State  V.  Bloom 113 

"     V.  Bohan 258 

"     V.  B.  &  M.  R.  Co 34 

i'.  Bridgman 31,210 

"      V.  Briggs 210 

"     z*.  Brockman 56 

"      V.  Brown 56 

"     V.  Byrne 17 

' '      V.   Clare 125 

"     z".  Clinton 110,209 

"      V.  Damery 222 

"     V.  Danforth 23 

' '     V.  Davis 54 

"      V.  Dennin 235 

"     z'.  Dickinson 60,62 

"     z'.  Dickson    15,101 

"      V    Donovan 127 

"      V.  Dunnell 122 

"     V.  Egan 233 

' '     V.  Elliott 14.61,  237 

"     V.  Kassett 201 

' '      V.  Fay 209 

' '      V.  Feltes 59 

"      z'.  Fitzgerald 77 

"      7'.  Foote 218 

''     V.  Forshner 235,  236 

' '      z'.  Fortner 55 

"     V.  Fraunburg 62 

"     V.  Gann 175 

"      V.  Gedicke 32 

"     V.  Gilman 58,  59 

"      V.  Glynn 230 

' '      V.  Graham 14 

"      V.  Grant 54,  229,  233,  235 

' '      V.  Grear 59 

"      V.  Gurnee 128,  135 

"      z/.  Hamilton 179 

*'     V.  Harper 62 

' '     V.  Hastings no 

"     V.  Hayden loi,  105,  106 

"     V.  Heed 213 

"     V.  Heinrich 179 


TABLE  OF  CASES  CITED. 


Ixi 


PAGE 

State  V.  Hendricks 235 

"     t'.  Henke 185 

"     V.Hodge 179 

"     V.  Hodgskins iii 

' '      V.  Hopkins 83 

"     V.  Houser 77 

"      V.  Hoyt 5,  14,  23,  82,  198 

"     z'.  Humbird 155 

"  V.  Intoxicating  Liquors. .   n3 

"      !».  Ivins 17 

"     f.  Jones  17,54,196 

"      I/.  Kelly 179 

"     V.  King 113 

•'      V.  Kingsbury  245 

"     V.  Kinney 17 

' '      V.  Klinger 105 

' '      V.  Knight 231 

' '      V.  Knowles    53 

"      V.  Lamb 58,  59 

"  z/.  Lapage.... 33,  34,  113,   114 

' '     V.  Larkin 10 

"     V.  Lawlor 234 

' '     V.  Levy 194 

"     V.  Lewis 228 

"     z/.  Litchfield 208,211 

'*     V.  Lonsdale 209 

"      V.  Macdonald 86 

' '      V.  Mallon 16 

"     V.  Markins 31 

'•      V.  Mayberry 141 

"      V.  McAllister 117 

"      V.  McCaffrey 245 

"      z'.  McDonnell 53 

*'     V.  McGlothlen 211 

"      V.  McKean 211 

"     V.  McLaughlin 229 

"     V.  Mewherter 203 

'*     f.  Miller 238 

"      z'.  Minnick 121 

"     V.  Morris 83,  123,  125 

"     V.  Mortimer 56 

**     ?/.  Mosley 96 


PAGE 

State  V.  Nelson 234 

"     V.  Nichols 211 

"     V.  Niles 17 

"     V.  Nugent 25 

' '      V.  Ober 209 

"  V.  Patterson. 53,  54,55,62,  178 

"     V.  Peck 155 

' '      V.  Phair 63 

' '     V.  Phelps 59 

"     V.  Pike 201 

"     V.  Potter 55,  187 

"     I/.  Powers 122 

''      V.  Railroad  Co 26,34 

"      z'.  Randolph 195.233 

"      v.Ked 209 

"     V.  Redemeier 179 

"     V.  Reed 18,  236 

"     V.  Resells 55 

"     V.  Richards 17 

"     V.  Riggs 30 

"      V.  Rodman 113,  220 

''      V.    Romaine 183 

"      V.  Rorabacher 221 

' '     V.  Roswell Ill 

' '     V.  Rush 233 

''     V.  Sayers 221 

"      V.  Scanlan 194 

"      V.  Shaffer 179 

"      V.  Shee 188 

"     z'.  Smith 223 

"      V.  Soper 200 

"      V.   Staley 56.  59 

''     z*.  Stein 232 

"      z/.  Sullivan 61 

' '      V   S wayze 223 

"     V.  Tatro 55 

"     z'.  Thompson 155 

"     V.  Timmens 211 

' '      V.  Tully 211 

"      V.  Turner 221,  236 

"     V.  Wagner 81,  125 

"     f.  Walker 7 


Ixii 


TABLE  OF  CASES  CITED. 


PAGE 

State  V.  Ward 29,  no,  226,  234 

"     w.  Warner 17 

"      -'.  Welch 210 

"     V.  Wentworth 28,  55,  209 

"     V.  Westfall 258 

"     £>.  White 205,236 

"     z'.  Williams 31,120 

"      V.  Wilner 187 

"      V.  Wilson 210 

"     V.  Wingo 178 

"     V.  Witham 20,  58,  209,  224 

' '      V.  Wood 60,  202 

"      t'.  Woodson 14 

"      z'.  Worthingham in 

Staunton  v.  Parker 206 

Stead  V.  Heaton 69 

Stearns  v.  Doe 137 

"        V.  Field 105 

"        V.  Merchants'  Bk.. 230,  231 
Stebbins  z/.  Duncan. .  .130,  135,  136 

Steed  V.  Cruise 208 

Steele  v.  Lord 136 

Steen  v.  Bennett 85 

Stein  V.  Bowman 75,  217 

Steinbach  v.  Relief  Ins.  Co 88 

Stephens  v.  People 106 

"        f.  Vrooman 38 

Stevens  v.  McNamara 187 

Stevenson  v.  Hoy 139 

"  V.  Superior  Ct 85 

Stewart  v.  First  Nat.  Bk 78 

"       z'.  Keteltas 164 

"        v.  Wells 41 

Stier  z'.  Oskaloosa    117 

Stiles  V.  Allen    221 

Stilwell  V.  Carpenter 213 

Stimpson  v.  Brooks 219 

Stirling  v.  Buckingham  142 

Stitt  V.  Huidekopers 173,  rj4o 

Stoate  V.  Stoate 89 

Stobart  v.  Dryden 38 

Stockbridge  Co.  v.  Hudson  Co.  165 


-  PAGE 

Stockfleth  z;.  De  Tastet 52 

Stoddard  v.  Johnson 97 

Stokes  V.  Johnson  222 

"       z'.  Macken 117 

"       V.  People 14,228 

Stolp  V.  Blair 235 

Stone  V.  Segur 21 

Storm  V   U.  S 225 

Story  V.  Bishop 155 

Stott  V.  Rutherford 190 

Stout  V.  Cook 77 

Stover  z/.  People 6,  16,  113,  179 

Stowell  V.  Chamberlain 87,  93 

"       V.  Moore 219 

Strang  v.  People 236 

Stringer  z'.  Gardiner 172,  269 

Strong  V.  Connell 224 

' '       V.  Lord 232 

Strong's  Excrs 108 

Stroud  V.  Tilton 64 

Sturla  V.  Freccia 39,  80 

Sturm  V.  Atlantic  Ins.  Co 222 

Sugden  z'.  St.  Leonards 71 

Sullivan  v.  Comm 61,  112 

Summerbell  v.  Summerbell  . . .   211 

Summons  v.  State 77,  78 

Supples  V.  Cannon 86,  199 

' '        V.  Le\»is 164 

Susquehanna   Ins.   Co.  v.  Toy 

Co 37 

Susq. ,  etc.  R.  Co.  V.  Quick  ...     42 

Sussex  Peerage  Case 70,  238 

Sutton  V.  Bowker 171 

Swain  v.  Frazier 163 

Swaine  v.  Seamens 164 

Swan  V.  Comm 23 

"      V.  British,  etc.  Co. ...190,  272 

"      z/.  Middlesex 102 

Swartz  V.  Chickering 239 

Sweet  V.  Sherman 234 

' '     z'.  Tuttle 93 

Swift  V,  Life  Ins.  Co. 16,  32 


TABLE  OF  CASES  CITED. 


Ixiii 


Swinnerton  v.  Ins.  Co.  122,  123,  125 

Swisher  v.  Comm 61 

Switzer  v.  Knapps 155 

Sydleman  v.  Beckwith loi 

Sykes,  In  re 140 

Sykes  v .  Bonner 89 


Tabor  v.  Van  Tassell 43 

Taddiker  v.  Cantrell 157 

Talbot  V.  Hodson 134 

Talcott  V.  Harris 18 

Tarns  v.  Hitner 130 

Tanner  v.  Parshall 44 

Tarbox  v.  State  . .  ^ 28 

Tate  V.  Tate 211 

Taylor  v.  Foster 204 

"       V.  Oilman 16 

"       V.  Glaser 155 

"       V.  Gould 66 

V.  G.  T.  R.  Co 41,  44 

"       V.  Larkin 199 

"       V.  Peck 128 

"       V.  State 195 

"       V.  Withams 69 

Taylor  Will  Case 71 

Teachout  t*.  People 58 

Teague  v.  Irwin 224 

Tedens  v.  Schumers 234 

Teerpenning  v.  Corn  Ex.   Ins. 

Co 100,  126 

Teese  v.  Huntingdon 233 

Tenney  z'.  Berger 245 

"        v.  Tuttle 115 

Thayer  v.  Boston 172 

"       V.  Thayer 31 

Thielmann  v.  Burg 120 

Thomas  v.  Hubbell 95 

"        V.  Le  Baron 134 

"        V.  Nelson 138,  164 

"       V.  Stivers 123 


PAGE 

Thompson  v.  Blanchard 189 

"  V.  Bowie 20,  34 

"  z".  Comm 54.56 

"  V.  Engle 206 

"  V.  German,  etc.   R. 

Co 200 

"  V.  Haskell 120 

"  V.  Higginbotham. . .   219 

"  V.  Stewart 121 

"  V.  Whitman 99 

-' '  V.  Woolf 75 

Thomson  v.  State 17 

Thornton's  Excrs.z'.  Thornton's 

i      Heirs 230 

Thorpe  r'.  Keokuk  Coal  Co...    132 

Thorson  1'.  Peterson 123 

Thurber  r'.  Anderson 36 

Thurman  v.  Cameron 146 

Thurtell  v.  Beaumont 176 

Tillou  T'.  Clinton,  etc.  Ins.  Co.   158 

'  Tilson  V.  Terwilliger 43 

Tilton  i>.  Amer.   Bible  Soc 169 

:       "      W.Miller 107 

I  Tioga  Co.  V.  South  Creek  Tp.   184 

Titford  V.  Knott 109 

I  Titus  V.  Ash 233 

Toebbe  v.  Williams 159 

Tome  V.  Parkersburgh,  etc.  R. 

I      Co Ill 

Tomlinson  v.  Derby 230 

'  Tompson  v.  Fisher 134 

Tooker  v.  Conner 52 

Topliff  V.  Jackson 40 

Totten  V.  Bucy 128,  141 

1       "       -'.  U.  S 200 

I  Towne  v.  Butterfield 190 

Townsend   v.    Merchants'    Ins. 

'  Co 52 

!  "  v.    Pepperell 66 

,  Tracy  t'.  McManus 21 

[  Trambly  v.  Ricard 162 

,  Trasker  v.  Everhart 155 


Ixiv 


TABLE  OF  CASES  CITED. 


PAGE 

Travis  v.  Brown iii 

Treadway  v.  S.  C,  etc.  R.  Co..     47 

Trelawney  v.  Coleman ,     32 

Trotter  v.  McLean 36 

Truax  v.  Slater 44 

Trustees  v.  Bledsoe 239 

"        z'.  Calhoun 71 

"        V.  Colegrove 169 

"        V.  McKechnie 155 

Tucker  v.  Call 176 

"       V.  Seamen's  Aid  Soc. .   169, 
171 

''       t'.  Woolsey 137 

Tufts  v.  Charlestown 18 

Tunlow  V.  P.  &  R.  R.  Co 117 

Turnbull  v.  Payson 121,  147 

Turner  v.  Comm 178 

' '       V.  Green 130 

Turner's  Adm'r 121,  123 

Turnpike  Co.  v.  Baily 128 

"     V.  M'Kean 81 

Turquand  v.  Knight    204 

Turrell  v.  Warren 98 

Tuska  V.  O'Brien 89 

Twomley  v.  C.  P.  N.  R.  Co...       9 

Tyler  <^  Fickett 169 

"      V.  Flanders 74,  75 

' '      V.  Todd 1 10 

''      V.  Ulmer 84 

Tyng  V.  U.   S.   Submarine,  etc. 
Co 240 

U 

Udderzook  v.  Comm 20,  128 

Ulrich  V.  People 55 

Union  v.  Plainfield 74 

Union  Bk.  t'.  Knapp 63 

Union  Pac.  R.  Co.  v.  Shoup...     47 

U.  S.  V.  Amedy 121,  150 

' '      V.  Angell 77 

"     V.  Babcock ^7,  140 


U.  S.  V.  Biebusch 195,  211 

v.  Charles 58,  202 

V.  Clark 193 

V.  Dickinson 224 

V.  Duff 140 

V.  Duffy 58 

V.  Eighteen  Barrels,  etc.  223 

V.  Farrington 202 

V.  Guiteau 197,  198 

V.  Hunter 140,  208 

V.  Jackson 123 

V.  Jones 1 10 

V.  Linn 158 

V.  Macomb 77,  78 

V.  McCarthy 209 

r'.  McKee 11 

V.  Moses 200 

I'.  Noelke 36 

J'.  Percheman 146 

V.  Perot 117 

V.   Pocklington 56 

I'-  Stone 55 

V.  Tilden 140 

V.  Van  Sickle 233 

i>.  Walker 98 

V.  Williams 36 

V.  Wood 213 

V.  Wright  175 

Unity  V.  Burrage 117 

Upstone  V.  People loi 

Upthegrove  v.  State 14 

Utica  Ins.  Co.  v.  Cadwell 140 

V 

Vaise  v.  Deleval 201 

Van  Aernam  v.  Van  Aernam  . .  183 

Van  Bokkelen  v.  Taylor 154 

Van  Brunt  v.  Day  163 

Van  Buren  v.  Cockburn 159 

Van  der  Donct  v.  Thellusson. .  104 

Vandervoort  I'.  Smith. . . , . .,,,  12) 


TABLE  OF  CASES  CITED. 


Ixv 


PAGE 

Vanderwerker  v.  People 122 

Van  Duyne  v.  Thayre 41,  139 

Van  Gelder  v.  Van  Gelder 41 

Van  Houten  v.  Post 170 

Van  Keuren  r.'.  Parmalee. ...  45,  46 

Vanneter  v.  Grossman 39 

Van  Nostrand  v.  Moore 169 

Van  Rensselaer  v.  Jones  130 

"            "          V.  Vickery 154 

Van  Sickle  v.  Gibson 74 

Van  Storch  v.  Griffin 116,  147 

Vaughan  z/.  O'Brien  87 

Veazie  v.  Forsaith 168 

Veiths  V.  Hagge 177 

Viele  V.  Jackson 188 

Vigel  V.  Hopp 213 

Village  of  Port  Jervis  v.  First 

Nat.  Bk 94 

Vilmar  v.  Schall 65 

Vinal  V.  Burrill 46 

Vining  v.  Baker 188 

Vogel  V.  Osborne 40 

Volant  V.  Soyer 208 

Von  Sachs  v.  Kretz. .  43,  44,  50,  138 

Vooght  V.  Winch 92 

Vosburgh  v.  Thayer 64 

Vrooman  v.  Griffiths 224 

V.  King 43 

W 

Wadsworth  v.  Sharpsteen 84 

"  v.  Williams 42 

Wagenseller  v.  Immers 20 

Wakeman  v.  Bailey 208 

Walbridge  v.  Knippen. . .  77,  78,  79 
Waldele  v.  N.  Y.  C.  R.  Co.. 6,  7,  9 

Walden  v.  Davison 140 

Waldron  v.  Waldron 162 

Walker  v.  Chase .192 

"       V.  Dunspaugh 225 

"       ?/.  People 179 


Walker  v.  Walker 156 

Wallace  v.  Taunton  St.  R'y. . .  226 

Wallack  v.  Wylie 237 

Wallis  V.  Littell 166 

V.  Randall 47 

Wallize  v.  Wallize 162,  171 

Walls  V.  Bailey 164 

Walrath  I/.  Whittekind 167 

Walsh  V.  People 14,  23 

V.  Porterfield 224 

Walter  v.  Gernant 7 

Walters  7j.  State , .   179 

Walton  V.  State 233 

Wandell  v.  Edwards 236 

Ward  V.  Henry 120 

T'.  Kilpatrick 127 

"       I'.  Lewis 15s 

' '      V.  Oxford 72 

' '       V.  People 56 

' '       V.  Warren 185 

Ware  v.  Morgan 137 

Waring  v.  Smyth 158 

Warner  v.  Hurdy 146 

V.  Lockerby 233 

V.  N.  Y.  C.   R.  Co....     26 

Warren  v.  Comings 86 

' '       V.  Gabriel 230 

' '       V.  Gregg 162 

' '       V.  Warren 36 

Washburn  v.  Cuddihy 82 

Water  Comm'rs  v.  Lansing 145 

Waterman  v.  Whitney 6,  18 

Waters  v.  People 179 

Waters  Heater  Co.  v.  Smith  . .     30 

Watkins  v.  Holman 151 

V.  Pintard 141 

Watry  v.  Ferber 236 

Watson  V.  Brewster 74,  76 

*'       V.  Comm 179,213 

"        V.  Riskamire 222 

"        V.   Rodwell 125 

»'       y.  Walker 144,  151 


Ixvi 


TABLE  OF  CASES  CITED. 


PAGE 

Wayland  v.  Ware 145 

Weaver  v.  Leiman 66,  74,  76 

Webb  V.  Bird 186 

"       V.  Buckalew 87 

"       V.  East 210 

"      V.  Richardson 76 

' '      V.  State 234 

Webster  v.  Mann 237 

' '        V.  Paul 67 

Weed  V.  People 25 

Weeks  v.  Lowerre jj 

"       V.  Sparke 71,  259,  260 

Wehle  z/.  Spelman 51 

Wehrkamp  v.  Willet 233 

Weigand  v.  Sichels 132 

Welcome  v.  Batchelder 199,  237 

Weldon  7'.  Harlem  R.  Co 28 

Wellford  v.  Eakin 131 

Wells  V.  Company 120 

"       7/.  Stevens 97 

"      V.  Wells 194 

Wendlinger  v.  Smith 163 

Wentvvorth  v.  Wentworth 185 

Wertheim  v.  Continental  R.  Co.  140 

Wertz  V.  May 234 

Wesner  v.  Stein 40 

West  V.  Smith 52 

Westcott  z'.  Atlantic  Co 208 

"        V.  Edmunds 87 

Western  Trans.  Co.  v.  Barber.   192 

W.  U.  Tel.  Co.  V.  Hopkins 129 

Westmann  v.  Krumweide 163 

Weston  V.  Eames 165 

"        ?'.  Gravlin 176 

Wetherbee  v.  Norris 233 

Wetherill  v.  Stillman 98,  99 

Wetmore  v.  Carryl 159 

Weyman  v.  People 35 

Whalin  v.  White 190 

Wharam  v.  Routledge 240 

Wheat  V.  Summers 40 

Wheatly  v.  Baugh  ............  i86 


PAGE 

Wheeler  v.  Ruckman 87 

Whelan  v.  Lynch 83 

Whelpley  v.  Loder 203 

Whitaker  v.  Izod 207 

"         z/.  Jackson 93 

"         f.  Salisbury 230 

Whitcher  z-.  McLaughlin...  66,  136 

"  V.  Morey 78 

"  z'.  Shattuck 31 

Whitcomb  v.  Whiting 48,  49 

White  V.  Beaman 68 

"       z'.  Chase 86 

"      V.  Continental  Nat.  Bk.   191 

"       z/.  Graves 5 

"       V.  Merritt 86 

"       V.  Miller 45 

"       V.  Milwaukee  R.  Co 128 

"       V.  Murtland 236 

' '       V.  Ross 32 

' '       V.  Weatherbee 88 

"       z*.  Wood 130 

Whitehead  v.  Kennedy 179 

Whitehouse  v.  Bickford 82 

Whiting  V.  Lake 45 

"         V.  Nicoll 185 

Whitman  v.  Heneberry 156 

Whitney  v.  Leominster 34 

"        V.  Thacher 83,102 

Whitney  Arms  Co.  v.  Barlow..   176 
Whiton  V.  Albany,  etc.  Ins.  Co.    80, 

ISO 
"        V.  Snyder..  40,  42,  102,  180 

Whittlesey  v.  Frantz 85 

Whittuck  V.  Walters 76 

Whitwell  z'.  Winslow 23 

Whyman  v.  Garth 132,  264 

Widdifield  v.  Widdifield 164 

Wiggin  z^.  B.  &  A.  R.  Co 42 

"       z".  Goodrich 166 

"Wiiggins  V.  Burkham 40,  124 

"        V.  People 14 

Wigglesworth  V.  PallisQH,.i64,  267 


TABLE  OF  CASES  CITED. 


Ixvii 


Wightman  v.  Coates 211 

WikofTs  Case 159 

Wilberforce  v.  Hearfield 82 

Wilbur  V.  Selden 77 

Wilder  v.  Cowles 177 

Wilkins  w.  Babbershall 230 

Willett  V.  People 54 

Williams  v.  Bridges 50 

"         I/.  Comm 58,213,247 

"         w.  East  India  Co 177 

"         V,  Floyd 132 

"         I/.  Freeman 162 

"         z/.  Graves 69 

"         z/.  Gunnels 176 

"         V.  Montgomery 201 

"         V.  Sergeant 42,221 

"         V.  State no 

"         z/.  Wilkes 121 

"         z/.  Williams 91 

Willis  V.  Hulbert 163 

Wilmington  v.  Burlington   74 

Wilson  V.  Anderton 192 

"       V.  Boerem 60 

"       V.   Bowden 50 

"       V.  Deen 163 

' '       V.  Granby 32 

' '       V.  Knapp 66 

V.  M.  &  N.  R.  Co 129 

"       z*.  New  Bedford 186 

"       z".  O'Day 47 

"       z/.  Powers 163 

"       £>.  Randall 161 

"       z/.  R  as  tall 204 

"       z'.  State 233 

"       V.  Sullivan 173 

"       z'.  Terry 19 

"       V.  Wagar 223 

' '       V.  Webber 207 

Willson  V.  Belts 131,  156 

Winchester  v.  Charter 43 

Wing  V.  Angrave 185 

"     V.  Bishop , 41,  90 


Wing  V.  Chesterfield 24J 

Winn  z/.  Patefson 156 

Winooski  v.  Gokey 117 

Withington  v.  Warren 199 

Wolf  V.  Comm 56 

Womack  ?'.  Tankersley in 

Wood  V.  Chetwood 198 

"      z'.  Fowler 122 

"      z/.  Ins.  Co 123 

"      V.  Morehouse 187 

"      V.  State 6 

"     V.  Steele 160 

Woodbury  v.  Obear 105 

Woodcock  V.  Houldsworth ....     36 

Woodford  v.  People 54 

Woodman  v.  Dana no 

"  zi.  Segar 131 

Woodruff  V.  Woodruff 89 

Woods  V.  Keyes 78 

"       z'.  People 235,236 

Woodward  v.  Leavitt 201 

Wooley  V.  Grand  St.  R.  Co. . .     26 

Wooster  v.  Butler 71 

Worthington  v.  Scribner 200 

Wottrich  V.  Freeman 197 

Wright  V.  Doe  d.  Tatham  . .  19,  102 

"        z*.  Hanna 233 

"       z*.  Masseras 18 

"        z/.  Nostrand 14 

"        V.  Paige 233 

"        v.U.S 149 


Xenia  Bank  v.  Stewart 45 


Yale  7K  Comstock 78,  79 

Yates  V.  Fassett 87 

"      z'.  People 25 

"     V,  Yates.,,. ..,,,., iiQ 


Ixviii 


TABLE  OF  CASES  CITED. 


PAGE 

Yeaton  v.  Fry 151 

Yocum  V.  Smith 190 

York  V.  Pease 224 

York  Co.!'.  Central  R.  Co 219 

York,  etc.  R.  Co.  v.  Winans  . .  120 

Young  V.  Clare  Hall 258 

"      V.  Comm 55 

"       V.  Edwards 224 

"       z/.  Grote 190,272 

"      z/.  Makepeace 23 


PAGE 

Young  V.  Perkins 68 

"      V.  State 54,  55 

Youngs  V.  Youngs 209 

Yount  V.  Howell 120 

Z 

Zabriskie  v.  State 211 

Zepp  V.  Hager 99 

Zerley  v.  Wilson 132 

Zitske  V.  Goldberg 199 


TABLE   OF   STATUTES   CITED. 


ENGLISH. 


PAGE 

7  James  I.  c.  12 279 

2oCh.  II.  c.  3 186 

7  &  8  Will.  III.  c.  3,  ss.  2,  4  . . .  212, 

279 

13  Geo.  III.  c.  63  216 

"        "         "    ss.  40,  42,  44..  216 

39  &  40  Geo.  III.  c.  93 212,  279 

41  Geo.  III.  0.  90,  s.  9 287 

46  Geo.  III.  c.  37 210,  280 

7  Geo.  IV.  c.  64,  s.  4 243 

7&  8  Geo.  IV.  0.  28 114 

"  "         "     s.  II. .  .114,  279 

9  Geo.  IV.  c.  14,  s.  1 48,  279 

"         "  "      s.  3 67,  68,  279 

I  Will.  IV.  0.  22 216 

3  &  4  Will.  IV.  c.  42 68,  279 

5  &  6  Will.  IV.  c.  50,  s.  100 273 

6  &  7  Will.  IV.  c.  Ill 114,  279 

7  Will.  IV.  &  I  Vict.  0.  26 281 

I  &  2  Vict.  c.  94,  ss.  I,  12,  13  . .  286 

"      s.  13 146 

I  &  2  Vict.  c.  105  215 

3  &  4  Vict.  c.  26 273 

3  &  4  Vict.  c.  105 216 

6  &  7  Vict.  c.  85 273,  280 

8  &  9  Vict.  c.  10,  s.  6 211,  279 

8  &  9  Vict.  0.  113  (preamble) . . .  145, 

280 

"        "        "      s.  1 146,  280 

"        "        "      s.  2 122,  280 


PAGE 

8  &  9  Vict.  c.  113,  s.  3 280,  287 

"         "         "       ss.  4-7 280 

II  &  12  Vict.  c.  42 216,  257 

"  "         "    s.  17,  ...217, 241, 

279 

13  &  14  Vict.  c.  21,  ss.  7,  8 118 

14  &  15  Vict.  c.  99,  ss.  1-20.  .280,  281 
s.  2 272,  273 


16  & 


17  & 
17  & 


17  Vict.  c. 


18  Vict. 
18  Vict. 


273 
283 
289 


286 
146 

215 

273 
283 


ss.  9,  10,  II, 

19... 

s.  14... 
s.  16... 

83,  ss.    I,  2, 
S.    2 

s.  3 i9» 

104,  s.  270.  .217,  243 

125,  S.   2 234 

s.  20 214 

ss.  22,  23.  .  278 
ss.  22,  27.  .  281, 
282 
282, 
283 
232 
134. 
265 
1 10 


ss.  22-27. 


s.  24. 
s.  26. 


s.  27 , 


Ixx 


TABLE  OF  ST  A  TUTES  CITED. 


i8  &  19  Vict. 
19  &  20  Vict. 


PAGE 

192 

,  279 


24  &  25  Vict. 
24  &  25  Vict. 
28  Vict. 


c.  Ill,  s.  3. 

c.  97,  s.  13 . 

"  "        "      s.  14 48 

24  &  25  Vict.  c.  66 214,  282 

"  "         "      ss.  1-3 282 

c.  96,  s.  116... 114,  279 

c-  99-  s.  2>7 114.  279 

! 282 

ss.  1-8 282 

s.  3 234 

ss.  3-8 284 

s.  5 232 

s.  8 106,  no 

s.  18 103 

28  &  29  Vict.  c.  18,  ss.  I,  7.  .134,  265 

s.  6 228 

c.  63,  s.  6 290 

c.  104,  s.  34 197 

c.  35,  s.  6.217,  242,  279 
c.  37 288 


28  &  29  Vict. 
28  &  29  Vict. 

30  &  31  Vict. 

31  &  32  Vict. 


31  &  32  Vict. 

32  &  33  Vict. 

33  ^  34  Vict. 

33  &  34  Vict. 

34  &  35  Vict. 

34  &  35  Vict. 

35  &  36  Vict. 

36  &  37  Vict, 

37  &  38  Vict. 
37  &  38  Vict. 
40  «&  41  Vict. 
42  &  43  Vict 
42  &  43  Vict. 


PAGE 

c.  37,  ss.  1-6 282 

"  ss.  2-3 288 

c.  68,  ss.  1-6.  .281,  283 

"  s.  2 210 

"  s.  3.  197,  273,  281 
"  s.  4.  214,  273,  283 

c.  49,  s.  I 214,  283 

"   ss.  2,  3 283 

C.  79,  S.  21 288 

c.  70,  s.  5 288 

C.  112,  S.  19 28,  279 

c.  6,  s.  4 216,  279 

0.  66,  s.  25 118 

"   s.  76 122 

c.  35 273 

c.  96 273 

c.  14 197 

C.  2 285 

c.  II 207,  285 

"  ss.  3,  5 286 


United  States. 


PAGE 

.  214 
.  216 
.  216 
-  147 
.  147 


$1 

§  lOI 

$183 

$213 

§§  460,  461 

$  474 216 

Act  of  Congress 

Maine. 


PAGE 

c-  73.  §  19  .  •   130 
c.  81,  %  100  .     68 


[AMERICAN.] 

Revised  Statutes. 
(Edition  of  1878.) 

PAGE 

§724 140  j  §§  863-868  .  . 

§  828 147   $§  882-898  .  . 

§  858 194   $§  882-900  .  . 

^S  863 217    %  892 

§§    863-876..  217,      §895 

242  1  %  905 148; 

,  March  16,  1878 


218 
143 
145 
147 

151 
150 


§  906  .. 
$  908  . . 
$  1778  . 
$$4194,4195. 
%  5392  . 
pp.1090-1092  149 
196 


148 
149 
216 
147 

214 


Revised  Statutes. 
{Edition  of  1883.) 

PAGE 


c.  82,  §§  98, 

IOC 


c.  82,  $§  108, 
109 104 


PAGE 

c.  82,  §  109. .  152 
c.  82,  §  lie.  134 
c.  134,  $  19.  •  242 


TABLE  OF  STATUTES  CITED. 


Ixxi 


New  Hampshire. 

General  Laws. 
(Edition  of  1878.) 

PAGE  PAGE  PAGE 

c.  228,  §  14. .  207  I  c.  228,  $  15. .  230  I  c.  228,  %  27..  228  I 


Vermont. 


Revised  Laws. 
(Edition  of  1880.) 


$1938 


130  I  ^  1943 130  I 


Massachusetts. 


Public  Statutes. 
(Edition  of  1882.) 


PAGE 

PAGE 

PAGE 

PAGE 

C.  85,   $  16  ..    211 

C.    169,    §  2  .  .     231 

c.  169,  $$  23r 

c.  169,  §$  72, 

C.     120,    %%    8, 

C.  169,5$  7,  12    216 

64..  217 

73 ••  104 

10 130 

"      $$13-18.     215 

$67  .  149 

"       $  73  ■   152 

c.  159,  $  SI  .  217 

$   18.     196, 

"    $$  69, 

c.  197,  $  16  .     68 

c.  167,  $$49- 

198 

71..  149 

"       $  17  •     48 

60. .140, 216 

%   19.     195, 

"     $70.  144 

C.  213,   $  13  .    201 

"      §  56..  207 

228 

C.  214,  $  12  .    181 

Rhode  Island. 

Public  Statutes. 

(Edition 

of  1882.) 

c.  214,  $  41  .  134  I  c.  214,  $  42  ,  no  I 


New  York. 

Code  of  Civil  Procedure. 
(Edition  of  1885.) 

PAGE  PAGE  PAGE  PAGE 

§530  . 117  I  $  828 198  I  $  832  .  .  .195,  228  I  $  837  .  .  .209,  210 

$$  803-809.  .  140  U  829 193  U  833 206  U  839 45 


$827 


217 !  $  831 198 1  $  834 206  I  %  843 216 


TABLE  OP  STATUTES  CITED. 


Nbw  York — Code  of  Civil  Procedure  (Continued). 


$$845-851..   215 

$  847 214 

$851 214 

$  868 140 

§$  870-886. .  216 

$§  887-920  ..217, 

242 

$899 217 

%%  900-909..  218 


PAGE 

§$  910,911..     219 

§§921-924..   145, 

146 

§  924 63,   64 

%  928 146 

§§  928-941..     145 
§  932 149 

$  933 144 

§§935-937..   134 
§936 146 


§  942  . . .  104 

§§943.  944- 
§§943-947- 
§§  948-951 . 
§$  952-956. 

§§957.958. 
%%  957-962. 
§  961 


PAGE 
.  149. 

1521 
.  144 

145 
.  148 
.121, 

152 
.  144 
.  145 
.  147 


§  962 . . 


PAGB 
.  63,  143, 
14s,  152 
§§  IOII-IO26  217 


§  IOI8  , 
§  1209 

\  1753  • 
§  1865  , 
§  2591 


218 
87 

211 
70 

85 


§§  2618-2620  131 
§  2621 70 


Code  of  Criminal  Procedure. 
(Edition  of  1885.) 

PAGE                 PAGE                 PAGE  PAGE 

§§  188-221 .  .  216  I  §  265 201  j  §  393 196  I  §  399 211 

§  198 58  I  §  266 202  I  §  395 55  I  §§  620-657  . .  242 

PAGE  PAGE 

Penal  Code,  §  715 196  1  Laws  of  1880,  c.  36 no 

Revised  Statutes,*  63,  §  38  ... ,    71  |  Laws  of  1883,  c.  195 134 


New  Jersey. 


Revision  of  Statutes. 


(Edition  of  1877.) 

PAGE  PAGE  PAGE  PAGE 

p.  378,  §  I..  228  I  p.  379,  §9..  228  I  p.  381 no  I  p.  595,  §  10  .     48 


Illinois. — Revised  Statutes  (Edition  of  1883),  c.  51,  §  i 228 

"  "  "  "       p.  543.  $51 134 

V>iD\KYiK.— Revised  Statutes  (Edition  of  1881),  §  507 231 

"  "  "  ''       §508 229 

Nebraska. — Code  of  Civil  Procedure  (Edition  of  1881),  §  338 228 

Wisconsin.— A'^j/j.f^^ Statutes  (Edition  of  1878),  §  4073 228 


LIST   OF   ABBREVIATIONS. 


(ENGLISH   AND    IRISH    REPORTS,    BTC.) 

A.  &  E Adolphus  &  Ellis's  Reports. 

App.  Cas Appeal  Cases. 

Atk Atkyn's  Reports. 

B.  &  A Barnewall  &  Alderson's  Reports. 

B.  &  Ad Barnewall  &  Adolphus's  Reports. 

rj      a.   r>  \ 

'    „    '' I  Broderip  &  Bingham's  Reports. 

B.  &  C Barnewall  &  Cresswell's  Reports. 

Beav Beavan's  Reports. 

Bell,  C.  C Bell's  Crown  Cases. 

Best, Best  on  Evidence,  6th  ed. 

B.  &  S Best  &  Smith's  Reports. 

Bing Bingham's  Reports. 

Bing.  N.  C Bingham's  New  Cases. 

Bligh,  N.  S Bligh's  House  of  Lords'  Reports,  New  Series. 

B.  &  P Bosanquet  &  Puller's  Reports. 

B.  N.  P Buller's  Nisi  Prius. 

Br.  P.  C Brown's  Parliamentary  Cases. 

BuUer,  N.  P Buller's  Nisi  Prius. 

Burr Burrows'  Reports. 

C.  A Court  of  Appeal. 

Camp Campbell's  Reports. 

Car.  &  Kir Carrington  &  Kirwan's  Reports. 

C.  B Common  Bench  Reports. 

C.  B.  (N.  S.) Common  Bench  Reports,  New  Series. 

Ch.  D Chancery  Division. 

C  C.  C. ) 

r^'      r^  '  A f  Cox's  Crown  Cases. 

Cox,  Cr.  Ca ) 

C.  C.  R Crown  Cases  Reserved. 


Ixxiv  LIST  OF  ABBREVIATIONS. 


C.  &F Clark  &  Finnelly's  Reports. 

C.  M.  &  R Crompton,  Meeson,  &  Roscoe's  Reports. 

C.  &  Marsh Carrington  &  Marshman's  Reports. 

Cowp Cowper's  Reports. 

C.  &  P Carrington  &  Paine's  Reports. 

„'     *     ." f  Common  Pleas  Division. 

C.  P.  Div ) 


C.  &  J Crompton  &  Jervis's  Reports. 

c  B I 

op.  f  Dearsly  &  Bell's  Crown  Cases. 


D.  &  B. 

Dear. 

Dear )  ^        ,   ,    _,  ^ 

„        ,     o  T^  \  Dearsly  s  Crown  Cases. 

Dearsly  &  P )  ■' 

De  G.  &  J De  Gex  &  Jones's  Reports. 

De  G.  M.  &  G De  Gex,  Macnaghten,  &  Gordon's  Reports. 

De  G.  &  S De  Gex  &  Smale's  Reports. 

Den.  C.  C Denison's  Crown  Cases. 

Dovig Douglas's  Reports. 

Dru.  &  War Drury  &  Warren's  Reports. 

Ea East's  Reports, 

East,  P.  C East's  Pleas  of  the  Crown. 

E.  &  B Ellis  &  Blackburn's  Reports. 

E.  &  E Ellis  &  Ellis's  Reports. 

Esp Espinasse's  Reports. 

Ex Exchequer  Reports. 

Ex.  D. . . 
Ex.  Div. 


\  Exchequer  Division. 
F.  &  F Foster  &  Finlason's  Reports. 


Gen.  View.  Cr.  Law.  Stephen's  General  View  of  the  Criminal  Law. 

Giff Giffard's  Reports,  Chancery. 

Godb Godbolt's  Reports. 

Hale,  P.  C Hale's  Pleas  of  the  Crown. 

Hare, Hare's  Reports. 

H.  Bl H.  Blackstone's  Reports. 

H.  &  C Hurlstone  &  Coltman's  Reports. 

H.  &  N Hurlstone  &  Norman's  Reports.  , 

H.  L.  C House  of  Lords  Cases. 

Ir,  Cir.  Rep Irish  Circuit  Reports. 

Ir.  Eq.  Rep Irish  Equity  Reports 


LIST  OF  ABBREVIATIONS.  Ixxv 


Jac.  &  Wal Jacob  &  Walker's  Reports. 

Jebb,  C.  C Jebb's  Criminal  Cases  (Ireland). 

Keen Keen's  Reports,  Chancery. 

L.  &  C Leigh  &  Cave's  Crown  Cases. 

Leach Leach's  Crown  Cases. 

L.  J.  Ch Law  Journal,  Chancery. 

L.  J.  Eq Law  Journal,  Equity. 

L.  J.  M.  C Law  Journal,  Magistrates'  Cases. 

L.  J.  N.  S Law  Journal,  New  Series. 

[^.  J.  Q.  B Law  Journal,  Queen's  Bench. 

L.  R.  App.  Cas Law  Reports,  Appeal  Cases. 

L.  R.  Ch.  Ap Law  Reports,  Chancery  Appeals. 

L.  R.  Ch.  D Law  Reports,  Chancery  Division. 

L.  R.  C.  C.  R Law  Reports,  Crown  Cases  Reserved. 

L.  R.  C.   P Law  Reports,  Common  Pleas. 

L.  R.  C.  P.  D Law  Reports,  Common  Pleas  Division. 

L.  R.  E.  &  I.  App... Law  Reports,  English  &  Irish  Appeals. 

L,  R.  Ex Law  Reports,  Exchequer. 

L.  R.  Ex.  D Law  Reports,  Exchequer  Division. 

L.  R.  P.  &  D Law  Reports,  Probate  &  Divorce. 

L.  R.  P.  D Law  Reports,  Probate  Division. 

L.  R.  Q.  B Law  Reports,  Queen's  Bench. 

L.  R.  Q.  B.  D Law  Reports,  Queen's  Bench  Division. 

L.  R.  Sc.  Ap Law  Reports,  Scotch  Appeals. 

Madd Maddock's  Reports. 

Man.  &  R Manning  &  Ryland's  Reports. 

McNally  Ev McNally's  Rules  of  Evidence. 

M.  &  G Manning  &-  Granger's  Reports. 

M.  &  K Mylne  &  Keen's  Reports. 

M.  &  M Moody  &  Malkin's  Reports. 

M.  &  S Maule  &  Selwyn's  Reports. 

M.  &  W Meeson  &  Welsby 's  Reports. 

Moo.  C.  C Moody's  Crown  Cases. 

Mo.  &  Ro Moody  &  Robinson's  Reports. 

Moo.  P.  C Moore's  Privy  Council  Reports. 

Pea.  R Peake's  Reports. 

Phi.  Ev Phillips  on  Evidence,  loth  ed. 

Phill Phillips'  Reports. 


Ixxvi  LIST  OF  ABBREVIATIONS. 


Price Price's  Reports. 

P.  D Probate  Division. 

Q.  B Queen's  Bench  Reports. 

Q.  B.  D Queen's  Bench  Division. 

Rep Coke's  Reports. 

R.  N.  P Roscoe's  Nisi  Prius,  13th  ed. 

R.  &  R Russell  &  Ryan's  Crown  Cases. 

Russ.  Cri )  „        „. 

„  /-,  .  1  Russell  on  Crimes,  4th  ed. 

Russ.  on  Crimes  . .  ) 

Ry.  &  Mo Ryan  &  Moody's  Nisi  Prius  Reports. 

Selw.  N.  P Selwyn's  Nisi  Prius. 

Sim i     .         ,    ^ 

„.  c  Simon  s  Reports. 

Simon )  ^ 

Sim.  (N.  S.) ,  ^. 

„.          /XT    c-  X  \  Simon  s  Reports,  New  Series. 

Simon  (N.  S.) S  ^ 

Sim.  &  Stu Simon  &  Stuart's  Reports. 

S   L_  Q 1 

„'    . '     J  '  U f  Smith's  Leading  Cases,  7th  ed. 

Smith,  L.  C ) 

Star Starkie's  Reports. 

Starkie Starkie  on  Evidence,  4th  ed. 

,.'        „'!,■ \  Swabey  &  Tristram's  Reports. 

Swa.  &  Tr !  ^  '^ 

S.  T. ,  or  St.  Tri State  Trials. 

Story's  Eq.  Jur Story  on  Equity  Jurisprudence. 

Swab.  Ad Swabey 's  Admiralty  Reports. 

T.  E Taylor  on  Evidence,  6th  ed. 

T.  R Term  Reports. 

Tau Taunton's  Reports. 

Ve Vesey's  Reports. 

Vin.  Abr Viner's  Abridgment. 

Wigram,  or ) 

yj^.      p-  .f    p  \  Wigram  on  Extrinsic  Evidence. 

Wills'  Circ.  Ev Wills  on  Circumstantial  Evidence. 


LIST  OF  ABBREVIATIONS.  Ixxvii 


[AMERICAN    REPORTS,    ETC.] 

(The  abbreviations  of  the  names  of  the  several  States,  being  well  under- 
stood, are  omitted.) 

Abb.  Dec Abbott's  Decisions,  Court  of  Appeals,  N.  Y. 

Abb.  N.  C Abbott's  New  Cases,  N.  Y. 

Abb.  Pr Abbott's  Practice  Reports,  N.  Y. 

Abb.  Pr.  (N.  S.) "  "  "  "      New  Series. 

Alb.  L.  J Albany  Law  Journal,  N.  Y. 

Allen Allen's  Reports,  Mass. 

Am.  Dec American  Decisions  (cases  from  all  States). 

Am.  Law  Reg.  N.  S.American  Law  Register,  New  Series. 

Am.  Law  Rev American  Law  Review. 

Anth.  N.  P Anthon's  Nisi  Prius  Reports,  N.  Y. 

Barb Barbour's  Reports,  Supreme  Court,  N.  Y. 

Barb.  Ch Barbour's  Chancery  Reports,  N.  Y. 

Barr,  Barr's  Reports,  Pa. 

Baxt Baxter's  Reports,  Tenn. 

Beas Beasley 's  Chancery  Reports,  N.  J. 

Ben Benedict's  Reports,  U.  S.  District  Court. 

Binn Binney's  Reports,  Pa. 

Bishop,  Cr.  L Bishop  on  Criminal  Law,  7th  ed. 

Bishop,  Cr.  Pro Bishop  on  Criminal  Procedure,  3d  ed. 

Bishop,  M.  &  D Bishop  on  Marriage  and  Divorce,  6th  ed. 

Black Black's  Reports,  U.  S.  Supreme  Court. 

Blackf Blackford's  Reports,  Ind. 

Blatch Blatchford's  Reports,  U.  S.  Circuit  Court, 

B.  Mon Ben  Monroe's  Reports,  Ky. 

Bos Bosworth's  Reports,  Superior  Court,  N.  Y. 

Bradw Bradwell's  Appellate  Reports,  111. 

Brews Brewster's  Reports,  Pa. 

Bump's  Fed.  Pro Bump  on  Federal  Procedure. 

Bush Bush's  Reports,  Ky. 

Cai Caine's  Reports,  N.  Y. 

C.  E.  Gr C.  E.  Greene's  Equity  Reports,  N.  J. 

Cf Confer,  compare. 

Cine Cincinnati  Reports,  Ohio. 

Cow Cowen's  Reports,  N.  Y. 

Cr Cranch's  Reports,  U.  S.  Supreme  Court. 


Ixxviii  LIST  OF  ABBREVIATIONS. 

Cr.  C.  C Cranch's  U.  S.  Circuit  Court  Reports. 

Ct.  of  CI Court  of  Claims  Reports,  U.  S. 

Cush Cushing's  Reports,  Mass. 

Daly, Daly's  Reports,  Court  of  Common  Pleas,  N.  Y. 

Daniel,  Neg.  Inst Daniel  on  Negotiable  Instruments,  3d  ed. 

Del.  Ch Delaware  Chancery  Reports. 

Dem Demarest's  Reports,  Surrogate  Courts,  N.  Y. 

Den Denio's  Reports,  N.  Y. 

Dill Dillon's  Reports,  U.  S.  Circuit  Court. 

Disney Disney's  Reports,  Superior  Court,  Ohio. 

Duer Duer's  Reports,  Superior  Court,  N.  Y. 

Dutch Dutcher's  Reports,  N.  J. 

E.  D.  Sm E.   D.   Smith's  Reports,  Court  of  Common  Pleas, 

N.  Y. 

Edm.  Sel.  Cas Edmond's  Select  Cases,  N.  Y. 

Edw.  Ch Edward's  Chancery  Reports,  N.  Y. 

F.  R Federal  Reporter,  U.  S.  Circuit  and  District  Courts. 

Fost Foster's  Reports,  N.  H. 

G.  &  J Gill  &  Johnson's  Reports,  Md. 

Gill Gill's  Reports,  Md. 

Gr.  Ch Green's  (H.  W.)  Chancery  Reports,  N.  J. 

Gr.  Ev Greenleaf  on  Evidence. 

Gratt Grattan's  Reports,  Va. 

Gray Gray's  Reports,  Mass. 

Hill, Hill's  Reports,  N.  Y. 

Hilt Hilton's  Reports,  Court  of  Common  Pleas,  N.  Y. 

Houst.  C.  C Houston's  Criminal  Cases,  Del. 

How.  Pr Howard's  Practice  Reports,  N.  Y. 

How.  (U.  S.) Howard's  Reports,  U.  S.  Supreme  Court. 

Humph Humphrey's  Reports,  Tenn. 

Hun Hun's  Reports,  Supreme  Court,  N.  Y. 

J.  &  Sp Jones  &  Spencer's  Reports,  Superior  Court,  N.  Y, 

Johns Johnson's  Reports,  N.  Y. 

Johns.  Cas Johnson's  Cases,  N.  Y. 

Johns.  Ch .,,,...., . .  Johnson'^  Chancery  Reports,  N.  Y, 


LIST  OF  ABBREVIATIONS.  Ixxix 


Kent's  Comm Kent's  Commentaries  on  American  Law. 

Keyes Keyes'  Reports,  Court  of  Appeals,  N.  Y. 

La.    Ann Louisiana  Annual  Reports. 

Lans Lansing's  Reports,  Supreme  Court,  N.  Y. 

Lea Lea's  Reports,  Tenn. 

Low Lowell's  Reports,  U.  S.  District  Court. 

McCrary McCrary's  Reports,  U.  S.  Circuit  Court. 

McL McLean's  Reports,  U.  S.  Circuit  Court. 

Mackey Mackey's  Reports,  District  of  Columbia. 

Mass.  Pub.  St Massachusetts  Public  Statutes. 

Md.  Ch Maryland  Chancery  Reports. 

Met Metcalf's  Reports,  Mass. 

Mo.  App Missouri  Appeals  Reports. 

N.  J.  Eq New  Jersey  Equity  Reports. 

N.  J.  L New  Jersey  Law  Reports. 

N.  J.  Rev New  Jersey  Revision  of  Statutes. 

N.  S New  Series. 

N.  Y.  Code  Civ.  Pro.  New  York  Code  of  Civil  Procedure. 
N.  Y.  Code  Cr.  Pro.  .New  York  Code  of  Criminal  Procedure. 
N.  Y.  Daily  Reg..  ..New  York  Daily  Register  (N.  Y.  City). 
N.  Y.  Pen.  Code New  York  Penal  Code. 

O.   St Ohio  State  Reports. 

P.  &  W Penrose  &  Watts'  Reports,  Pa. 

Pai Paige's  Chancery  Reports,  N.  Y. 

Park.   Cr Parker's  Criminal  Reports,  N.  Y. 

Pet Peters'  Reports,  U.  S.  Supreme  Court. 

Pet.  C.  C Peters'  U.  S.  Circuit  Court  Reports. 

Pick Pickering's  Reports,  Mass. 

R.  S Revised  .Statutes. 

Redf Redfield's  Reports,  Surrogate  Courts,  N.  Y. 

Rev.  St Revised  Statutes. 

Rob Robertson's  Reports,  Superior  Court,  N.  Yt 

S Section. 

S.  C Same  Case. 

S.  P. . . , Same  Principle, 


Ixxx  LIST  OF  ABBREVIATIONS. 


S.  &  R Sergeant  &  Rawle's  Reports,  Pa. 

Sandf. Sandford's  Reports,  Superior  Court,  N.  Y. 

Sandf.  Ch Sandford's  Chancery  Reports,  N.  Y. 

Scam Scammon's  Reports,  111. 

Sneed, „ Sneed's  Reports,  Tenn. 

Story, Story's  Reports,  U.  S.  Circuit  Court. 

Sumn Sumner's  Reports,  U.  S.  Circuit  Court. 

T.  &  C Thompson   &   Cook's    Reports,    Supreme    Court, 

N.  Y. 
Tucker Tucker's  Reports,  Surrogate  Courts,  N.  Y. 

Vr. Vroom's  Reports,  N.  J. 

W.  D Weekly  Digest,  N.  Y. 

W.  &  M Woodbury  &  Minot's  Reports,  U.  S.  Circuit  Court. 

Wall Wallace's  Reports,  U.  S.  Supreme  Court. 

Wash.  C.  C Washington's  U.  S.  Circuit  Court  Reports. 

Washb.  R.  P Washburn  on  Real  Property,  4th  ed. 

Watts Watts'  Reports,  Pa. 

Wend Wendell's  Reports.  N.  Y. 

Wh.  Cr.  Ev Wharton  on  Criminal  Evidence,  9th  ed. 

Wh.  Ev Wharton  on  Evidence. 

Whart Wharton's  Reports,  Pa. 

Wheat Wheaton's  Reports,  U.  S.  Supreme  Court. 

Woods Woods"  Reports,  U.  S.  Circuit  Court. 

Zab Zabhskie's  Reports,  N.  J. 


CONTENTS. 


PART  I. 

RELEVANCY. 

Chapter  I. — Preliminary. 
Art.  I.  Definition  of  Terms Pages    3-4 

Chaptfr  II. — Of  Facts  in  issue  and  relevant  to  the  issue. 

Art.  2.  Facts  in  issue  and  Facts  relevant  to  the  issue  may  be  proved — 
3.  Relevancy  of  Facts  forming  part  of  the  same  transaction  as  the 
Facts  in  issue  —  4.  Acts  of  Conspirators  — 5.  Title — 6.  Customs  — 
7.  Motive,  preparation,  subsequent  conduct,  explanatory  state- 
ments— 8.  Statements  accompanying  acts,  complaints,  statements  in 
presence  of  a  person — 9.  Facts  necessary  to  explain  or  introduce 
relevant  Facts Pages  5-23 

Chapter  III. — Occurrences  similar  to  but  unconnected  with 
THE  Facts  in  issue  irrelevant  except  in  certain  cases. 

Art.  10.  Similar  but  unconnected  Facts— 11.  Acts  showing  intention, 
good  faith,  etc. — 12.  Facts  showing  system — 13.  Existence  of  course 
of  business,  when  deemed  to  be  relevant Pages  24-37 

Chapter  IV. — Hearsay  irrelevant  except  in   certain  cases. 
Art.  14.   Hearsay  and  the  contents  of  documents  irrelevant.. Pages  38-39 

Section   I. — Hearsay,  when  relevant. 

Art.  15.  Admissions  defined  — 16.  Who  may  make  admissions  on  be- 
half of  others,  and  when — 17.  Admissions  by  agents  and  persons 
jointly  interested  with   parties  — 18.  Admissions  by  strangers — 19. 


Ixxxii  CONTENTS. 


Admission  by  person  referred  to  by  party — 20.  Admissions  made 
without  prejudice — 21.  Confessions  defined — 22.  Confession  caused 
by  inducement,  threat,  or  promise,  when  irrelevant  in  Criminal  Pro- 
ceeding — 23.  Confessions  made  upon  oath,  etc. — 24.  Confession 
made  under  a  promise  of  secrecy — 25.  Statements  by  deceased  per- 
sons, when  deemed  to  be  relevant — 26.  Dying  declaration  as  to  cause 
of  death — 27.  Declarations  made  in  the  course  of  business  or  profes- 
sional duty — 28.  Declarations  against  interest — 29.  Declarations  by 
testators  as  to  contents  of  will — 30.  Declarations  as  to  public  and 
general  rights — 31.  Declarations  as  to  pedigree — 32.  Evidence  given 
in  former  proceeding,  when  relevant Pages  39-79 

Section  II. — Statemen/s  in  Books,  DocumeiUs,  and  Records,  when 
relevant. 

Art.  33.  Recitals  of  public  facts  in  statutes  and  proclamations — 34. 
Relevancy  of  entry  in  public  record  made  in  performance  of  duty — 
35.  Relevancy  of  statements  in  works  of  history,  maps,  charts,  and 
plans — 36.  Entries  in  bankers'  books — 21-  Bankers  not  compellable 
to  produce  their  books — 38.  Judge's  powers  as  to  bankers'  books — 
39.  "Judgment" — 40.  All  judgments  conclusive  proof  of  their  legal 
effect — 41.  Judgments  conclusive  as  between  parties  and  privies  of 
Facts  forming  ground  of  judgment — 42.  Statements  in  judgments 
irrelevant  as  between  strangers,  except  in  Admiralty  Cases — 43.  Ef- 
fect of  judgment  not  pleaded  as  an  estoppel — 44.  Judgments  gener- 
ally deemed  to  be  irrelevant  as  between  strangers — 45.  Judgments 
conclusive  in  favor  of  Judge — 46.  Fraud,  collusion,  or  want  of  juris- 
diction may  be  proved — 47.   Foreign  judgments Pages  79-99 

Chapter  V. — Opinions,  when  relevant  and  when  not. 

Art.  48.  Opinion  generally  irrelevant — 49.  Opinions  of  experts  on  points 
of  science  or  art— 50.  Facts  bearing  upon  opinions  of  experts — 51. 
Opinion  as  to  handwriting,  when  deemed  to  be  relevant — 52.  Com- 
parison of  handwritings — 53.  Opinion  as  to  existence  of  marriage, 
when  relevant — 54.  Grounds  of  opinion,  when  deemed  to  be  rele- 
vant  Pages  100-112 

Chapter  VI.— Character,  when  deemed  to  be  relevant 
and  when  not. 

Art.  55.  Character  generally  irrelevant — 56.  Evidence  of  character  in 
Criminal  Cases— 57.  Character  as  affecting  damages.  .Pages  113-116 


CONTENTS.  Ixxxiii 


PART   II. 
ON   PROOF. 

Chapter  VII.— Facts  proved  otherwise  than  by  Evidence—. 
Judicial  Notice. 

Art.  58.  Of  what  Facts  the  Court  takes  judicial  notice  — 59.  As  to 
proof  of  such  Facts — 60.  Evidence  need  not  be  given  of  Facts  ad- 
mitted  Pages  117-125 

Chapter  VIII. — Of  Oral  Evidence. 

Art.  61.  Proof  of  Facts  by  oral  evidence — 62.  Oral  evidence  must  be 
direct Page  126 

Chapter  IX.— Of  Documentary  Evidence — Primary  and 
Secondary,  and  Attested  Documents. 

Art.  63.  Proof  of  contents  of  Documents — 64.  Primary  evidence — 65. 
Proof  of  documents  by  primary  evidence — 66.  Proof  of  execution  of 
document  required  by  law  to  be  attested— 67.  Cases  in  which  at- 
testing witness  need  not  be  called — 68.  Proof  when  attesting  witness 
denies  the  execution — 69.  Proof  of  document  not  required  by  law  to 
be  attested — 70.  Secondary  evidence — 71.  Cases  in  which  secondary 
evidence  relating  to  documents  may  be  given — 72.  Rules  as  to  no- 
tice to  produce Pages  127-141 

Chapter  X.— Proof  of  Public  Documents. 

Art.  73.  Proof  of  public  documents  — 74.  Production  of  document  it- 
self— 75.  Examined  copies — 76.  [General  records  of  the  Nation  or 
Stale] — 77.  Exemplifications — 78.  Copies  equivalent  to  exemplifica- 
tions— 79.  Certified  copies — 80.  [Documents  and  records  of  the  sev- 
eral .States  admissible  throughout  the  United  States] — 81.  [Officially 
printed  copies]  — 82.  [Proof  of  the  statutes  of  any  State  or  Territory] — 
83.  [Proclamations,  acts  of  state,  Legislative  Journals,  etc.] —  84. 
[Foreign  written  laws,  acts  of  state,  records,  etc.]  ....Pages  142-152 


Ixxxiv  CONTENTS. 


Chapter  XI. — Presumptions  as  to  Documents. 

Art.  85.  Presumption  as  to  date  of  a  document — 86.  Presumption  as  to 
stamp  of  a  document — 87.  Presumption  as  to  sealing  and  delivery  of 
deeds — 88.  Presumption  as  to  documents  thirty  years  old — 89.  Pre- 
sumption as  to  alterations Pages  153-160 

Chapter  XII. — Of  the  Exclusion  of  Oral  by  Documentary 
Evidence,  and  of  the  Modification  and  Interpreta- 
tion of  Documentary  by  Oral  Evidence. 

Art.  90.  Evidence  of  terms  of  contracts,  grants,  and  other  dispositions 
of  property  reduced  to  a  documentary  form — 91.  What  evidence 
may  be  given  for  the  interpretation  of  documents  — 92.  Cases  to 
which  articles  90  and  91  do  not  apply Pages  161-174 


CONTENTS.  Ixxxv 


PART   III. 
PRODUCTION  AND  EFFECT  OF  EVIDENCE. 

Chapter  XIII.— Burden  of  Proof. 

Art.  93.  He  who  affirms  must  prove — 94.  Presumption  of  innocence — 
95.  On  whom  the  general  burden  of  proof  lies — 96.  Burden  of  proof 
as  to  particular  Fact — 97.  Burden  of  proving  Fact  to  be  proved  to 
make  evidence  admissible Pages  175-182 

Chapter  XIV.— On  Presumptions  and  Estoppels. 

Art.  98.  Presumption  of  legitimacy — 99.  Presumption  of  death  from 
seven  years'  absence — 100.  Presumption  of  lost  grant  —  loi.  Pre- 
sumption of  regularity  and  of  deeds  to  complete  title — 102.  Estoppel 
by  conduct  — 103.  Estoppel  of  tenant  and  licensee — 104.  Estoppel 
of  acceptor  of  bill  of  exchange — 105.  Estoppel  of  bailee,  agent,  and 
licensee Pages  183-192 

Chapter  XV. — Of  the  Competency  of  Witnesses. 

Art.  106.  Who  may  testify — 107.  What  witnesses  are  incompetent  — 
108.  Competency  in  Criminal  Cases — 109.  [Husband  and  wife  in 
civil  cases, — cases  of  adultery]— no.  Communications  during  mar- 
riage— III.  Judges  and  advocates  privileged  as  to  certain  questions — 
112.  Evidence  as  to  affairs  of  state — 113.  Information  as  to  commis- 
sion of  offences  —  114.  Competency  of  jurors — 115.  Professional 
communications — 116.  Confidential  communications  with  legal  ad- 
visers— 117.  Clergymen  and  medical  men — 118.  Production  of  title- 
deeds  of  witness  not  a  party — 119.  Production  of  documents  which 
another  person,  having  possession,  could  refuse  to  produce — 120. 
Witness  not  to  be  compelled  to  criminate  himself — 121.  Corrobora- 
tion, when  required — 122.   Number  of  witnesses Pages  193-213 

Chapter  XVI.— Of  taking  Oral  Evidence,  and  of  the  Exam- 
ination of  Witnesses. 

Art.  123.  Evidence  to  be  upon  oath,  except  in  certain  cases — 124.  Form 
of  oaths  ;  by  whom  they  may  be  administered — 125.   How  oral  evi- 


Ixxxvi  CONTENTS. 


dence  may  be  taken — 126.  Examination  in  chie'l,  cross-examination, 
and  re-examination — 127.  To  what  matters  cross-examination  and 
re-examination  must  be  directed — 128.  Leading  questions — 129. 
Questions  lawful  in  cross-examination — 130.  Exclusion  of  evidence 
to  contradict  answers  to  questions  testing  veracity — 131.  Statements 
inconsistent  with  present  testimony  may  be  proved— 132.  Cross- 
examination  as  to  previous  statements  in  writing — 133.  Impeaching 
credit  of  witness — 134.  Offences  against  women  — 135.  What  matters 
may  be  proved  in  reference  to  declarations  relevant  under  Articles 
25-32 — 136.  Refreshing  memory — 137.  Right  of  adverse  party  as  to 
writing  used  to  refresh  memory — 138.  Giving,  as  evidence,  docu- 
ment called  for  and  produced  on  notice — 139.  Using,  as  evidence,  a 
document  production  of  which  was  refused  on  notice . .  Pages  214-240 

Chapter  XVII. — Of  Depositions. 

Art.  140.  Depositions  before  magistrates — 141.  Depositions  under  30  & 
31  Vict.  c.  35,  s.  6 — 142.  Depositions  under  Merchant  Shipping  Act, 
1854 Pages  241-244 

Chapter  XVIII. —  Of  Improper  Admission    and    Rejection  of 
Evidence. 

Art.  143 Page  245 

Appendix  of  Notes Pages  246-290 

Index Page  291 


A  DIGEST 

OF 

THE  LAW  OF  EVIDENCE. 


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*  See  Note  I. 


STEPHEN'S  DIGEST. 


I.  Wli;it  faints  may  and  ^ 


( Facts  in  issu 
}  Facte  releva 
(     (relation  n 


,cts  showing  inlenlion  in  good  f 

.cts  showing  system. 

,cts  showing  course  o(  business 

.  Admissions  and  confessions. 
.  Statements  of  deceased. 
.  Dying  declarations. 


.  Declaratio 
.  Declaratio 
.  Declaratio 
.  Evidence  i 


sapin 


3.  Opinion.  — Admittii 


be-  C 


horn  and  in 

what  manner  the 

ence    must 

)e  produced  by 
to  be  proved. 

h  any  fact  1 

Oral  evidence. — Direct. 
Documentary  evidence 

Burden  of  proof— On  hi; 


^'   I  Character  as  affecting  damages, 
of  proof  of  public  documi?nts. 


r  7  years  absence. 


'  Of  regularity  and  lost  deeds  to  comptel 

,  By  conduct. 

J  Of  tenant  and  licensee. 

1  Of  acceptor  of  bill  of  exchange. 

'  Of  bailee  and  agent. 


L  Witness  need  note 

(Evidence  on  oat 
Examination  in 
Redirect  examir 
[Leading  questio 


ifflB 


c 


m 


NOTES   ON   EVIDENCE— GREENLEAF— STEPHEN. 
By  Prof.  Chase. 


G,  §  18.  Under  such  circumstances 
some  courts  infer  not  an  intent  to  murder, 
but  only  an  intent  to  kill,  and  whether  it 
shall  be  deemed  murder  or  manslaughter 
is  to  be  determined  bythejury  from  all  the 
circumstances  of  the  case  (67  N.  Y.,  218.) 

G,  §  28.  When  a  wife  commits  a 
felony  in  presence  of  her  husband,  the 
presumption  of  compulsion  is  a  disputable 
one.  A  child  under  14  years  is  presumed 
incapable  of  rape,  but  this  presumption  is 
disputable  in  New  York  and  Ohio. 

G,  §  34-  When  a  person  is  in  the 
possession  of  the  fruits  of  crinie,  the  pre- 
sumption of  his  guilt  is,  in  New  York, 
a  presumption  of  /ac/  for  the  jury  to 
decide  on  all  the  circumstances  of  the 
case  (Stover  vs.  People,  56  N.  Y.,  315. 

G,  §  45.  Corroboration  of  an  accom- 
plice's testimoiiy '15  aBsoluttily  iiecessaiy 
to  sustain  a  conviction  in  New  York, 
.(Code  Crim.  Pro.,  399.) 

G,  §  102.  Now  that  parties  are  com- 
petent witnesses,  the  declarations  of  a 
party  injured,  made  some  time  after  the 
injury  that  he  is  suffering  pain,  are  no/ 
competent  as  evidence,  at  least  when 
not  made  to  a  physician  in  professional 
attendance.  But  evidence  may  still  be 
given  if  groans,  screams  or  exclamations 
indicative  of  present  pain  and  suffering. 
105  N.  Y.,  294  ;  99  N.  Y.,  136. 

S,  §  52,  N.  1.  As  to  offers  of  com- 
promise, See  102  N.  Y.  66a  ;  95  N.Y.,  428  ; 
108  N.  Y..   428. 

S,  Art  23,  III.  (G).  Still  good  law  gen- 
erally, but  not  if  at  the  time,  he  was 
under  arrest  for  the  crime,  103  N.Y.,  211. 


S,  Art.  115.  Bacon  rs.  Fristie,  80N.Y.. 
394,  is  a  leading  case  on  privileged  com- 
munications between  lawyer  and  client 

G,  §  291.  First  case  cited  still  good 
law  ;  next  three  are  unsound,  as  to  ad- 
mitting parol  evidence  of  oral  statements 
of  intention  by  the  testator. 

G,  I  310.  An  expert  will  meet  the  re- 
quirements of  a  subpoena  if  he  appears 
and  gives  impron^ptu  answers  to  such 
questions  as  may  be  put  to  him,  but  it 
could  not  re(iuire  him  to  examine  the 
case,  nor  to  attend,  hear  and  consider  the 
evidence  given,  so  as  to  qualify  him  to 
form  an  opinion.     13  Abb.  Pr.,  N.  S.,  207. 

Biitin  Indiana  it  is  held  that  an  expert  is 
entitled  to  compensation  for  his  profes- 
sional opinion  and  may  refuse  to  testify 
without  it,  59  Ind.,  i  &  15. 

Ttre  ecmnaTy'-hr  hghJ-Trr-Alabttina,  it 
Am.  L.  Rev.,  589. 

G>  §  367.  If  it  appears  to  the  trial 
judge  that  the  child  does  not  sufficiently 
understand  the  nature  and  obligation  of 
an  oath,  it  is  within  his  discretion  to 
])ermit  it  to  be  properly  instructed,  pro- 
vided it  is  of  sufficient  age  and  intellect  to 
receive   the   instruction,    142    Mass.,  577. 

G,  §569.  Unless  subscribing  witnesses 
are  necessary  lo  the  validity  of  the  instru- 
ment, a  writing  may  be  proved  without 
calling  the  subscribing  witness  to  it,  in 
the  same  way  as  it  might  be  proved  if  it 
had  no  such  witness.  (N.  Y.  Laws  of 
1883,  c.  195.) 

G,  §  579.  Comparison  of  a  disputed 
writing  may  be  made  by  witnesses  with 
any  writing  proved  to  the  satisfaction  of 


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A  DIGEST 

OF 

THE  LAW  OF  EVIDENCE. 


PART    I. 

RELEVANCY. 

CHAPTER  I. 

PRELIMINARY. 

Article  i.* 

definition  of  terms. 

In  this  book  the  following  words  and  expressions  are  used  in 
the  following  senses,  unless  a  different  intention  appears  from 
the  context. 

"  Judge  "  includes  all  persons  authorized  to  take  evidence, 
either  by  law  or  by  the  consent  of  the  parties. 

"  Fact  "  includes  the  fact  that  any  mental  condition  of  which 
any  person  is  conscious  exists. 

"Document"  means  any  substance  having  any  matter  ex- 
pressed or  described  upon  it  by  marks  capable  of  being  read. 

"  Evidence  "  means — 

(i)  Statements  made  by  witnesses  in  court  under  a  legal 
sanction,  in  relation  to  matters  of  fact  under  inquiry  ; 

such  statements  are  called  oral  evidence: 

(2)  Documents  produced  for  the  inspection  of  the  Court  or 
judge  ; 

such  documents  are  called  documentary  evidence. 

*  See  Note  I. 


A  DIGEST  OF  [Part  I. 


"  Conclusive  Proof"  means  evidence  upon  the  production  of 
which,  or  a  fact  upon  the  proof  of  which,  the  judge  is  bound  by- 
law to  regard  some  fact  as  proved,  and  to  exclude  evidence  in- 
tended to  disprove  it.^ 

"A  presumption"  means  a  rule  of  law  that  Courts  and 
judges  shall  draw  a  particular  inference  from  a  particular  fact, 
or  from  particular  evidence,  unless  and  until  the  truth  of  such 
inference  is  disproved.' 

The  expression  "  facts  in  issue  "  means — 

(i)  All  facts  which,  by  the  form  of  the  pleadings  in  any 
action,  are  affirmed  on  one  side  and  denied  on  the  other  : 

(2)  In  actions  in  which  there  are  no  pleadings,  or  in  which 
the  form  of  the  pleadings  is  such  that  distinct  issues  are  not 
joined  between  the  parties,  all  facts  from  the  establishment  of 
which  the  existence,  non-existence,  nature,  or  extent  of  any 
right,  liability,  or  disability  asserted  or  denied  in  any  such  case 
would  by  law  follow. 

The  word  "relevant "  means  that  any  two  facts  to  which  it  is 
applied  are  so  related  to  each  other  that  according  to  the  com- 
mon course  of  events  one  either  taken  by  itself  or  in  connection 
with  other  facts  proves  or  renders  probable  the  past,  present, 
or  future  existence  or  non-existence  of  the  other.^ 


1  [What  is  here  called  "  conclusive  proof"  is  termed  by  Mr.  Greenleaf 
and  some  other  writers,  a  "conclusive  presumption  of  law,"  while  what  is 
here  called  a  "  presumption  "  is  termed  by  them  a  "disputable  presump- 
tion of  law."  Gr.  Ev.  i.  §§  14-46.  For  illustrations  of  "conclusive 
proof,"  seeJ>osi,  Articles  40-44  ;  of  "  presumptions,"  see  Articles  85-89,  94, 
95,  98-101.] 

"^  [Insurance  Co.  -v.  Weide,  11  Wall.  438,  440;  Comm.  v.  Abbott,  130 
Mass.  473  ;  Comm.  v.  Jeffries,  7  Allen,  548,  563  ;  Rodgers  v.  Stophel,  32 
Pa.  St.  Ill  ;  Darling y.  Westmoreland,  52  N.  H.  401.  It  is  to  be  observed 
that  the  author  uses  the  expression,  "  deemed  to  be  relevant,''  in  many 
of  the  following  articles  to  apply  not  only  to  evidence  which  has  true 
logical  relevancy  as  here  defined,  but  also  to  evidence  which,  not  being 
logically  relevant,  is  nevertheless  declared  admissible  by  law,  as  a  means 
of  proof.    And  so  as  to  the  expression  "  deemed  to  be  irrelevant."] 


Chap.  II.]         THE  LAW  OF  EVIDENCE. 


CHAPTER  II. 

OF  FACTS  IN  ISSUE  AND  RELEVANT  TO  THE  ISSUE. 

Article  2.* 

facts  in  issue  and  facts  relevant  to  the  issue  may 
be  proved. 

Evidence  may  be  given  in  any  proceeding  of  any  fact  in 
issue, 

and  of  any  fact  relevant  to  any  fact  in  issue  unless  it  is  here- 
inafter declared  to  be  deemed  to  be  irrelevant, 

and  of  any  fact  hereinafter  declared  to  be  deemed  to  be  rel- 
evant to  the  issue  whether  it  is  or  is  not  relevant  thereto. 

Provided  that  the  judge  may  exclude  evidence  of  facts  which, 
though  relevant  or  deemed  to  be  relevant  to  the  issue,  appear 
to  him  too  remote  to  be  material  under  all  the  circumstances 
of  the  case.' 

Illustration. 

(<t)  a  is  indicted  for  the  murder  of  B,  and  pleads  not  guilty. 

The  following  facts  may  be  in  issue  : — The  fact  that  A  killed  B  ;  the 
fact  that  at  the  time  when  A  killed  B  he  was  prevented  by  disease  from 
knowing  right  from  wrong  :  2  the  fact  that  A  had  received  from  B  such 
provocation  as  would  reduca  his  offense  to  manslaughter.' 


*  See  Note  II. 

•  \Nicholson  v.  IVa/ul,  70  N.  Y.  604  ;  Kennedy  v.  People,  39  N.  Y.  245, 
254 ;  White  v.  Graves^  107  Mass.  325  ;  People  v.  Niles,  44  Mich.  606  ; 
Mansfield  Coal  Co.  v.  McEnery,  91  Pa.  St.  185  ;  Amoskeag  Co.  v.  Head, 
59  N.  H.  332.1 

»  \Moett  V.  People,  85  N.  Y.  373  ;  State  v.  Hoyt,  47  Ct.  518  ;  Nevling\. 
Comm.,  98  Pa.  St.  322.] 

'  [Bishop  Cr.  L.  ii.  ij^  701-719  ;  see  Shufflin  v.  People,  62  N.  Y.  229.] 


A  DIGEST  OF  [Part  1. 


The  fact  that  A  was  at  a  distant  place  at  the  time  of  the  murder  would 
be  relevant  to  the  issue  ;  the  fact  that  A  had  a  good  character  would  be 
deemed  to  be  relevant  ; '  the  fact  that  C  on  his  deathbed  declared  that 
C  and  not  A  murdered  B  would  be  deemed  not  to  be  relevant.^ 

Article  3. 

relevancy  of  facts  forming  part  of  the  same  trans- 
action as  the  facts  in  issue. 

A  transaction  is  a  group  of  facts  so  connected  together  as  to 
be  referred  to  by  a  single  legal  name,  as  a  crime,  a  contract,  a 
wrong  or  any  other  subject  of  inquiry  which  may  be  in  issue. 

Every  fact  which  is  part  of  the  same  transaction  as  the  facts 
in  issue  is  deemed  to  be  relevant  to  the  facts  in  issue,  although 
it  may  not  be  actually  in  issue,  and  although  if  it  were  not  part 
of  the  same  transaction  it  might  be  excluded  as  hearsay.* 


'  [Stover  V.  People,  56  N.  Y.  315  ;  Remsen  v.  People,  43  N.  Y.  6  ;  Comm. 
V.   Webster^  5  Cush.  295  ;  Hamilton  v.  People,  29  Mich.  195.] 

^  [So  a  letter  of  C  stating  that  he  committed  the  murder  would  be 
deemed  not  to  be  relevant.      Greenfield  v.  People,  85  N.  Y.  75.] 

3  [This  rule  is  embraced  in  the  doctrine  which  is  commonly  called  in  the 
law  of  evidence  the  doctrine  of  res  gestce.  (See  Gr.  Ev.  i.  %  108.)  This, 
briefly  stated,  is  that  evidence  of  acts  or  declarations  forming  part  of  the 
res  gesttB  [i.e.,  "  transaction,"  or  "act  to  be  proved  ")  so  as  to  explain  or 
qualify  it,  is  admissible  when  such  "  transaction  "  or  "  act  "  forms  the 
fact  in  issue  or  is  deemed  relevant  thereto.  Waldele  v.  N.  Y.  C.  R.  Co., 
95  N.  Y.  274  ;  Lander  v.  People,  104  111.  248  ;  Norwich  Co.  v.  Flint,  13 
Wall.  3  ;  Comm.  v.  Densmore^  12  Allen,  535  ;  Elkins  v.  McKean,  79  Pa. 
St.  493.  These  acts  or  declarations  so  connected  with  the  res  gestcB  are 
deemed  relevant,  because  they  serve  to  show  its  nature,  purpose,  occa- 
sion, or  object,  to  explain  its  origin  or  significance,  to  exhibit  the  rela- 
tions of  the  parties  concerned  therein,  etc.  Id.  ;  People  v.  Davis,  56  N. 
Y.  95,  102  ;  Eighmy  v.  People,  79  N.  Y.  546.  But  declarations  which 
are  prior  or  subsequent  to  the  transaction,  so  as  to  form  no  constituent 
part  of  it,  are  not  admissible.  Wood  v.  State,  92  Ind.  269  ;  Water- 
ntan  v.  Whitney,  11  N.  Y.  157  ;  Packet  Co.  v.  Clough,  20  Wall.  528  ;  Bigley 
V.  Williams,  80  Pa.  St.  107.  But  declarations  may  form  part  of  the 
res  gestce,  though  made,  not  by  parties  to  the  action,  but  by  bystanders. 


Chap.  II.]         THE  LAW  OF  EVIDENCE.  7 

Whether  any  particular  fact  is  or  is  not  part  of  the  same 
transaction  as  the  facts  in  issue  is  a  question  of  law  upon  which 
no  principle  has  been  stated  by  authority  and  on  which  single 
judges  have  given  different  decisions.' 

When  a  question  as  to  the  ownership  of  land  depends  on  the 
application  to  it  of  a  particular  presumption  capable  of  being 


Castner  v.  Sliker,  33  N.  J.  L.  95  ;  Walter  v.  Gernant,  13  Pa.  St.  515  ; 
Baker  v.  Gansin,  76  Ind.  317  ;   Shile  v.    Walker,  78  Mo.  380.] 

This  general  doctrine  also  includes  the  rule  stated  fosfnt  the  beginning 
of  .\rticle  8,  and  is  usually  deemed  to  embrace  the  cases  considered 
under  Article  4  ("  Acts  of  Conspirators  "),  Article  17  (so  far  as  the  de- 
clarations of  agents  and  partners  are  concerned),  Article  27  ("  Declara- 
tions made  in  course  of  business,"  etc.),  and  also  certain  cases  included 
under  Article  9  (see  Illustration  r)  and  Article  11  (see  Illustrations,^,/, 
and  m).  Sometimes  also  other  cases  are  included  under  this  general  prin- 
ciple.    Gr.  Ev.  i.  ^^  108-123  ;  see  post,  Note  V.  Appendix.] 

'  [The  author  has  added  this  paragraph  to  the  text  since  the  decision  in 
England  in  Bedingfield's  case  (see  Illustration  b).  In  some  American  deci- 
sions an  attempt  has  been  made  to  express  adefinite  rule  upon  the  subject, 
but  it  is  stated  in  so  vague  and  general  a  form  as  to  be  difficult  of  applica- 
tion. Thus  it  is  said,  "  The  general  rule  is  that  declarations,  to  become  a 
part  of  the  res  jester,  must  accompany  the  act  which  they  are  supposed  to 
characterize  and  must  so  harmonize  as  to  be  obviously  one  transaction." 
Moore  v.  Meachani,  10  N.  Y.  207,  210  ;  Enos  v.  Tuttle,  3  Ct.  250.  It  is 
often  stated  that  acts  or  declarations,  to  form  part  of  the  res  gesta,  must 
be  "  contemporaneous"  or  "  concomitant"  with  it  (Gr.  Ev.  i.  $  no),  and 
Bedingfield's  case  shows  that  this  rule  is  applied  in  England  very  strictly. 
In  this  country  also  numerous  decisions  are  found  applying  the  rule 
strictly  {Luhy  v.  Hudson  R.  Co. ,  17  N.  Y.  131  ;  People  v.  Ah  Lee,  60  Cal.  85  ; 
Clexieland,  etc. ,  K.  Co.  v.  Mara,  26  O.  St.  185  ;  Adams  v.  H.  .V  St.  J.  R.  Co. , 
74  Mo.  553  ;  Rockiuell  v.  Taylor,  41  Ct.  55),  while,  on  the  other  hand,  many 
cases  hold  it  to  be  sufficient  if  the  acts  or  declarations  occur  at  or  near 
the  time  of  the  main  transaction,  if  they  are  so  closely  near  as  to  be  di- 
rectly occasioned  or  evoked  by  such  transaction,  and  not  by  any  super- 
vening cause  or  motive.  Insurance  Co.  v.  Mosley,  8  Wall.  397  ;  Hunter  v. 
State,  40  N.  J.  L.  495  ;  Hanover  R.  Co.  v.  Coyle,  55  Pa.  St.  396  ;  O'Connor 
V.  Chicago.,  etc.,  R.  Co.,  27  Minn.  166  ;  Cleveland  \.  A'ewsom,  45  Mich.  62  ; 
McLeodv.  Ginther,  80  Ky.  399  ;  and  see  Lund\.  Tyngsborough,  9  Gush. 
36  ;  Alabama,  etc.,  R.  Co.  v.  Hawk,  72  Ala.  112.  The  subject  is  fully  dis- 
cussed in  Waldele  v.  A''.  Y.  C.  R.  Co.,  95  N.  Y.  274?] 


A  DIGEST  OF  [Part  I. 


rebutted,  the  fact  that  it  does  not  apply  to  other  neighboring 
pieces  of  land  similarly  situated  is  deemed  to  be  relevant.' 

Illustrations. 

(a)  The  question  was,  whether  A  murdered  B  by  shooting  him. 

The  fact  that  a  witness  in  the  room  with  B  when  he  was  shot,  saw  a 
man  with  a  gun  in  his  hand  pass  a  window  opening  into  the  room  in 
which  B  was  shot,  and  thereupon  exclaimed,  "There's  butcher  !"  (a 
name  by  which  A  was  known),  was  allowed  to  be  proved  by  Lord  Camp- 
bell, L.  C.  J.2 

'  [Gr.  Ev.  i.  ^  53  a.^ 

^  R.  V.  Fowkes,  Leicester  Spring  Assizes,  1856.  Ex  relatione  O'Brien, 
Serjt. 

Since  the  last  edition  of  this  work  was  published  I  have  referred  to  the 
report  of  this  case  in  the  Titnes  for  March  8,  1856,  where  the  evidence  of 
the  witnesses  on  this  point  is  thus  given  : — 

"  William  Fowkes :  My  father  got  up  the  window,  and  opened  it  and 
shoved  the  shutter  back.  He  waited  there  about  three  minutes.  It  was 
moonlight,  the  moon  about  the  full.  He  closed  the  window  but  not  the 
shutter.  My  father  was  returning  to  the  sofa  when  I  heard  a  crash  at  the 
window.  I  turned  to  look  and  hooted  '  There's  butcher. '  I  saw  his  face 
at  the  window,  but  did  not  see  him  plain.  He  was  standing  still  outside. 
I  aren't  able  to  tell  who  it  was  not  certainly.  I  could  not  tell  his  size. 
While  I  was  hooting  the  gun  went  off.  I  hooted  very  loud.  He  was 
close  to  the  shutter  or  thereabouts.  It  was  only  open  about  eight  inches. 
Lord  Campbell :  Did  you  see  the  face  of  the  man  ?  Wit/icss  :  Yes,  it  was 
moonlight  at  the  time.  I  have  a  belief  that  it  was  the  butcher.  I  believe 
it  was.  I  now  believe  it  from  what  I  then  saw.  I  heard  the  gun  go  off 
when  he  went  away.  We  heard  him  run  by  the  window  through  the 
garden  towards  the  park." 

Upon  cross-examination  the  witness  said  that  he  saw  the  face  when  he 
hooted  and  heard  the  report  at  the  same  moment.  The  report  adds 
"  the  statement  of  this  witness  was  confirmed  by  Cooper,  the  policeman 
(who  was  in  the  room  at  the  time),  except  that  Cooper  saw  nothing  when 
William  Fowkes  hooted  '  there's  butcher  at  the  window  !  '  He  stated  he 
had  not  time  to  look  before  the  gun  went  off.  In  this  case  the  evidence 
as  to  W.  Fowkes'  statement  could  not  be  admissible  on  the  ground 
that  what  he  said  was  in  the  prisoner's  presence,  as  the  window  was  shut 
when  he  spoke.  It  is  also  obvious  that  the  fact  that  he  said  at  the  time 
'  there's  butcher'  was  far  more  likely  to  impress  the  jury  than  the  fact 
that  he  thought  it  was  not  true  that  the  person  he  saw  wfts  the  butcher," 


Chap.  1 1.  J         THE  LAW  OF  EVIDENCE.  9 

{b)  The  question  was,  whether  A  cut  B's  throat,  or  whether  B  cut  it 
herself. 

A  statement  made  by  B  when  running  out  of  the  room  in  which  her 
throat  was  cut  immediately  after  it  had  been  cut  was  not  allowed  to  be 
proved  by  Cockburn,  L.  C.  J.' 

(c)  The  question  was,  whether  A  committed  manslaughter  on  B  by 
carelessly  driving  over  him. 

A  statement  made  by  B  as  to  the  cause  of  his  accident  as  soon  as  he 
was  picked  up  was  allowed  to  be  proved  by  Park,  J.,  Gurney,  B. ,  and 
I'attcson,  J.,  though  it  was  not  a  dying  declaration  within  article  26. = 

{ca)  [The  question  was  whether  A,  a  physician,  committed  the  crime  of 
killing  B  (a  woman)  by  the  use  of  means  to  procure  an  abortion  upon  B's 
person. 

A  statement  made  by  B  after  returning  home  from  A's  office  of  what  A 
had  done  and  said  to  her  there  was  not  allowed  to  be  proved.]  ' 

((7^)  [The  question  was  whether  A  was  negligent  in  jumping  from  the 
vehicle  of  B  (a  carrier  of  passengers)  when  the  vehicle  was  apparently  in 
a  position  of  imminent  danger. 

The  acts  of  other  passengers  in  jumping  from  the  vehicle  at  the  same 
time  were  allowed  to  be  proved.]  ■• 

(d)  The  question  is,  whether  A,  the  owner  of  one  side  of  a  river,  owns 
the  entire  bed  of  it  or  only  half  the  bed  at  a  particular  spot.     The  fact 


'  R.  V.  Bedingficld,  Suffolk  Assizes,  1879  [14  C.  C.  C.  341].  The  pro- 
priety of  this  decision  was  the  subject  of  two  pamphlets,  one,  by  W. 
Pitt  Taylor,  who  denied,  the  other,  by  the  Lord  Chief  Justice,  who  main- 
tained, it. 

[In  Massachusetts  it  has  been  held  that  where  a  person  was  stabbed 
and  said  to  a  person  who  reached  him  within  about  twenty  seconds  after 
the  injury,  "  I'm  stabbed  ;  I'm  gone  ;  Dan  Hackett  stabbed  me,"  these 
words  were  admissible  in  the  trial  of  his  assailant  for  murder,  as  part  of 
the  res  Q-cst(c.  Coinrn.  v.  Hackett,  2  Allen,  136  ;  see  Comin.  v.  McPike,  3 
Cush.  181  ;  People  v.  Simpson,  48  Mich.  474  ;  Waldele  v.  A^.  Y.  C.  R.  Co., 
95  N.  Y.  278. 

For  a  valuable  discussion  of  Bedingfield's  case  and  of  the  general  doc- 
trine of  res  gestcB,  see  American  Law  Review,  .\iv.  817,  xv.  i  and  71. 
The  writer  thinks  the  evidence  should  have  been  admitted  in  this  case. 
Id.  XV.  89.] 

"  R.  v.  Foster,  6  C.  &  P.  325. 

'  [People  V.  Davis,  56  N.  Y.  95 ;  Maine  v.  People,  9  Hun,  113.] 


^[Twomley  v,  C.  P.  M,  R,  Co.,  69  N.  Y.  158.] 


A  DIGEST  OF  [Part  I. 


that  he  owns  the  entire  bed  a  little  lower  down  is  deemed  to  be  rele- 
vant." 

(e)  The  question  is,  whether  a  piece  of  land  by  the  roadside  belongs  to 
the  lord  of  the  manor  or  to  the  owner  of  the  adjacent  land.  The  fact 
that  the  lord  of  the  manor  owned  other  parts  of  the  slip  of  land  by  the 
side  of  the  same  road  is  deemed  to  be  relevant.' 

Article  4.* 
acts  of  conspirators. 

When  two  or  more  persons  conspire  together  to  commit  any 
offence  or  actionable  wrong,  everything  said,  done,  or  written 
by  any  one  of  them  in  the  execution  or  furtherance  of  their 
common  purpose  is  deemed  to  be  so  said,  done,  or  written  by 
every  one,  and  is  deemed  to  be  a  relevant  fact  as  against  each 
of  them ; '  but  statements  as  to  measures  taken  in  the  execu- 
tion or  furtherance  of  any  such  common  jjurpose  are  not 
deemed  to  be  relevant  as  such  as  against  any  conspirators,  ex- 
cept those  by  whom  or  in  whose  presence  such  statements  are 
made.^  Evidence  of  acts  or  statements  deemed  to  be  relevant 
under  this  article  may  not  be  given  until  the  judge  is  satisfied 
that,  apart  from  them,  there  are  prima  facie  grounds  for  be- 


*  See  Note  III.  [also  Art.  3,  note], 
•  youes  V.   Williams,  2  M.  «&  W.  326. 

2  Doe  V.  Kemp,  7  Bing.  332  ;  2  Bing.  N.  C.  102. 

3  [Dewey  v.  Moyer,  72  N.  Y.  70 ;  Comm.  v.  Scott,  123  Mass.  222  ;  Nuddv. 
Burrows,  91  U.  S.  426  ;  Hartmati  v.  Diller,  62  Pa.  St.  37  ;  Lincoln  v. 
Clajlin,  7  Wall.  132.  It  is  immaterial  at  what  time  any  one  entered  into 
the  conspiracy.     Gr.  Ev.  i.  $  m.] 

^  [Thus  statements  made  by  a  co-conspirator  as  a  narrative  of  past 
acts  or  measures  taken  are  not  deemed  to  be  relevant,  not  forming  part 
of  the  res  gestcB.  People  v.  Davis,  56  N.  Y.  95  ;  Guaranty  Co.  v.Gleason, 
78  N.  Y.  503  ;  Heine  v.  Comm.,  91  Pa.  St.  145  ;  State  v.  Larkin.,  49  N.  H. 
39.  Confessions  made  by  one  after  the  conspiracy  is  ended  can  only  be 
received  as  evidence  against  himself  and  not  against  his  associates. 
Comm.  v.  Ingraham,  7  Gray,  46 ;  State  v.  Arnold,  48  la.  566  ;  People  v. 
Arnold,  46  Mich.  268  ;  People  v.  Aleck,  61  Cal.  137  ;  see  Art.  21,  post.] 


Chap.  II. J         THE  LAW  OF  EVIDENCE.  ii 

lieving  in  the  existence  of  the  conspiracy  to  which  they  re- 
late.' 

Illustrations. 

(a)  The  question  is,  whether  A  and  B  conspired  together  to  cause  cer- 
tain imported  goods  to  be  passed  through  the  custom-house  on  payment 
of  too  small  an  amount  of  duty. 

The  fact  that  A  made  in  a  book  a  false  entry,  necessary  to  be  made  in 
that  book  in  order  to  carry  out  the  fraud,  is  deemed  to  be  a  relevant  fact 
as  against  B. 

The  fact  that  A  made  an  entry  on  the  counterfoil  of  his  cheque-book 
showing  that  he  had  shared  the  proceeds  of  the  fraud  with  B,  is  deemed 
not  to  be  a  relevant  fact  as  against  B.^ 

[b)  The  question  is,  whether  A  committed  high  treason  by  imagining 
the  king's  death  ;  the  overt  act  charged  is  that  he  presided  over  an  or- 
ganized political  agitation  calculated  to  produce  a  rebellion,  and  direct- 
ed by  a  central  committee  through  local  committees. 

The  facts  that  meetings  were  held,  speeches  delivered,  and  papers 
circulated  in  different  parts  of  the  country,  in  a  manner  likely  to  produce 
rebellion  by,  and  by  the  direction  of,  persons  shown  to  have  acted  in 
concert  with  A,  are  deemed  to  be  relevant  facts  as  against  A,  though 
he  was  not  present  at  those  transactions,  and  took  no  part  in  them  per- 
sonally. 

An  account  given  by  one  of  the  conspirators  in  a  letter  to  a  friend,  of 
his  own  proceedings  in  the  matter,  not  intended  to  further  the  common 
object,  and  not  brought  to  A's  notice,  is  deemed  not  to  be  relevant  as 
against  A.^ 

>  \^Ormsby  v.  People,  53  N.  Y.  472  ;  the  judge  may  in  his  discretion  ad- 
mit evidence  of  the  acts  and  declarations  of  one  alleged  conspirator, 
upon  condition  that  such  proof  of  the  conspiracy  be  supplied  during  the 
trial  ;  but  this  should  only  be  allowed  in  urgent  cases.  Place  v.  Minster, 
65  N.  Y.  89;  Hamilton  v.  People,  29  Mich.  195.  The  existence  of  the 
conspiracy  may  be  proved  by  circumstantial  evidence  as  well  as  by  show- 
ing an  actual  preconcerted  agreement ;  as  by  proving  acts  and  declara- 
tions indicating  that  the  parties  were  all  acting  with  a  common  design. 
Kcllcy  V.  People,  55  N.  Y.  565  ;  People  v.  Arnold,  46  Mich.  268  ;  see  U. 
S.  V.  McKee,  3  Dill.  546;  Comm.  v.  Crowtiinsliield,  10  Pick.  497;  Dayton 
V.  Monroe,  47  Mich.  193.] 

«  R.  V.  Blake,  6  Q.  B.  137-140. 

8  Ji.  V,  Hardy,  24  S.  T.  passim,  but  see  particularly  451-3. 


12  A  DIGEST  OF  [Part  I. 

Article  5.* 

TITLE. 

When  the  existence  of  any  right  of  property,  or  of  any  right 
over  property  is  in  question,  every  fact  which  constitutes  the 
title  of  the  person  claiming  the  right,  or  which  shows  that  he, 
or  any  person  through  whom  he  claims,  was  in  possession  of 
the  property,  and  every  fact  which  constitutes  an  exercise  of 
the  right,  or  which  shows  that  its  exercise  was  disputed,  or 
which  is  inconsistent  with  its  existence  or  renders  its  existence 
improbable,  is  deemed  to  be  relevant.' 

Illustrations. 

(a)  The  question  is,  whether  A  has  a  right  of  fishery  in  a  river. 

An  ancient  inquisitio  post  mortem  finding  the  existence  of  a  right  of 
fishery  in  A's  ancestors,  licenses  to  fish  granted  by  his  ancestors,  and 
the  fact  that  the  licensees  fished  under  them,  are  deemed  to  be  relevant.'' 

[b)  The  question  is,  whether  A  owns  land. 

The  fact  that  A's  ancestors  granted  leases  of  it  is  deemed  to  be 
relevant. 3 

{c)  The  question  is,  whether  there  is  a  public  right  of  way  over  A's 
land. 

The  facts  that  persons  were  in  the  habit  of  using  the  way,  that  they 
were  turned  back,  that  the  road  was  stopped  up,  that  the  road  was 
repaired  at  the  public  expense,  and  A's  title-deeds  showing  that  for  a 
length  of  time,  reaching  beyond   the    time  when  the  road  was  said  to 


*  See  Note  IV. 
'  [Hosford\.  Ballard,  39  N.  Y.  147  ;  Cagger  v.  Lansing,  64  N.  Y.  417  ; 
Miller  v.  L.  I.  R.  Co.,  71  N.  Y.  380;  Boston  v.  Richardsoti,  105  Mass. 
351  ;  Gloucester  v.  Gaffney.,  8  Allen,  11 ;  Berry  v.  Kaddin,  11  Allen,  577 ; 
Sailor  v.  Hertzogg,  10  Pa.  St.  296.  In  proving  facts  of  ancient  date  to 
establish  title,  evidence  may  be  received  which  would  be  inadmissible  as 
to  facts  within  the  memory  of  living  witnesses.  Bogardus  v.  Trinity 
Church,  4  Sandf.  Ch.  633  ;   Goodwin  v.  Jack,  62  Me.  414.] 

2  Rogers  v.  Allen,  i  Camp.  309. 

3  Doe  V.  Pulman,  3  Q.  B.  622,  623,  626  (citing  Duke  of  Bedfordv.  Lopes'). 
The  document  produced  to  show  the  lease  was  a  counterpart  signed  by 
the  lessee,     ^eepost,  art.  64.     [Sec  Osgood  y.  Coates,  i  Allen,  77.^ 


Chap.  II.]         THE  LAW  OF  EVIDENCE.  13 


have  been  used,  no  one  had  power  to  dedicate  it  to  the  public,  are  all 
deemed  to  be  relevant. ' 

Article  6. 

CUSTOMS. 

When  the  existence  of  any  custom  is  in  question,  every  fact 
is  deemed  to  be  relevant  which  shows  how,  in  particular  in- 
stances, the  custom  was  understood  and  acted  upon  by  the 
parties  then  interested. 

»  Illustration. 

[a)  The  question  is,  whether,  by  the  custom  of  borough-English  as 
prevailing  in  the  manor  of  C,  A  is  heir  to  B. 

The  fact  that  other  persons,  being  tenants  of  the  manor,  inherited  from 
ancestors  standing  in  the  same  or  similar  relations  to  them  as  that  in 
which  A  stood  to  B,  is  deemed  to  be  relevant.^ 

Article  7. 

motive,  preparation,  subsequent  conduct, 
explanatory  statements. 

When  there  is  a  question  whether  any  act  was  done  by  any 
person,  the  following  facts  are  deemed  to  be  relevant,  that  is 
to  say — 

'  Common  practice.  As  to  the  title-deeds,  Brou^h  v.  Lord  Scarsdalc, 
Derby  Summer  Assizes,  1865.  In  this  case  it  was  shown  by  a  series  of 
family  settlements  that  for  more  than  a  century  no  one  had  had  a  legal 
right  to  dedicate  a  certain  footpath  to  the  public. 

'^  Mu£;gleton  v.  Barnett,  I  H.  &  N.  282.  For  a  late  case  of  evidence  of 
a  custom  of  trade,  see  Ex  parte  Powell,  in  re  Matthews,  L.  R.  i  Ch.  D. 
501.  [.^s  to  proof  of  a  usage  of  trade  or  business,  see  Dickinson  v. 
Poii,i;^hkeepsie,  75  N.  Y.  65  ;  Mills  v.  Hallock,  2  Edw.  Ch.  652  ;  Haskins 
v.  Warren,  115  Mass.  514  ;  Adams  v.  Pittsburgh  Ins.  Co.,  95  Pa.  St.  348, 
Such  a  custom  may  be  proved  by  one  witness.  Robinson  v.  U.  S.,  13 
Wall.  363  ;  Bissell  v.  Campbell,  54  N.  Y.  353. 

As  to  other  customs,  see  Smith  v.  Floyd,  18  Barb.  522  ;  Ocean  Beach 
Assn  V.  Brinlcy,  34  N.  J.  Eq.  438.J 


14  A  DIGEST  OF  [Part  I. 

any  fact  which  supplies  a  motive  for  such  an  act,'  or  which 
constitutes  preparation  for  it ;  ' 

any  subsequent  conduct  of  sucn  person  apparently  influenced 
by  the  doing  of  the  act,  and  any  act  done  in  consequence  of  it 
by  or  by  the  authority  of  that  person.^ 

Illustratiojis. 
{a)  The  question  is,  whether  A  murdered  B. 
The  facts  that,  at  the  instigation  of  A,  B  murdered  C  twenty -five  years 

'  [Illustrations  (a)  and  {ab).  Murphy  v.  People,  63  N.  Y.  592  ;  Wright 
V.  Nostratid,  94  N.  Y.  31  ;  Cotnm.  v.  Bradford,  126  Mass.  42  ;  Comm.  v. 
Httdson,  97  Mass.  565;  Ettinger  v.  Comm.,  98  Pa.  St.  338,  But  the  evi- 
dence to  show  motive  must  not  be  too  remote.  Comm.  v.  Abbott,  130 
Mass.  472.  Evidence  of  motive  is  admissible,  though  it  tends  also  to 
prove  the  commission  of  another  crime  than  tlie  one  charged.  Pontius  v. 
People,  82  N.  Y.  339.     See  Art.  10,  post.'] 

3  Illustrations  {b)  and  {be).  [See  Walsh  v.  People,  88  N.  Y.  458; 
Comm.  V.  Choate,  105  Mass.  451.  In  trials  for  homicide,  evidence  of 
antecedent  threats  made  by  the  defendant  against  the  deceased  is  admis- 
sible {Comm.  v.  Goodwin,  14  Gray,  55  ;  State  v.  Hoyt,  46  Ct.  330  ;  Read  v. 
State,  68  Ala.  492  ;  and  so  in  cases  of  forcible  injury,  yewett  v.  Banning, 
21  N.  Y.  27)  ;  and  so  in  cases  where  it  appears  that  the  deceased  was  or 
may  have  been  the  aggressor,  so  as  to  cause  the  defendant  to  act  in 
self-defence,  evidence  »s  received  in  many  States  of  threats  made  by  the 
deceased  against  the  defendant,  though  the  defendant  had  not  heard  of 
such  threats  (  Wiggins  v.  People,  93  U.  S.  465  ;  Stokes  v.  People,  53  N.  Y. 
164 ;  People  v.  Alivtre,  55  Cal.  263  ;  Roberts  v.  State,  68  Ala.  156  ;  State 
V.  Alexander,  66  Mo.  148  ;  Campbell  v.  People,  16  III.  17)  ;  so  a  fortiori, 
if  such  threats  are  made  known  to  the  defendant  (^/a^^  v.  Woodson,  i,x 
la.  425) ;  but  generally  in  other  cases,  evidence  of  threats  is  not  admitted. 
State  v.  Elliott,  45  la.  486. 

So  evidence  of  the  violent  and  quarrelsome  character  of  the  deceased 
is  only  received  when  the  circumstances  indicate  that  the  defendant  was 
acting  in  self-defence.  Abbott  v.  People,  86  N.  Y.  460 ;  Upthegrove  v. 
State,  37  O.  St.  662  ;  A lexander  v.  Comm.,  105  Pa.  St.  I  ;  State  v.  Graham, 
61  la.  608  ;  Roberts  v.  State,  68  Ala.  156 ;  Wharton  Cr.  Ev.  §$  68-84  ;  see 
Comm  V.  Barnacle,  134  Mass.  215.] 

=  Illustrations  {c)  {d)  and  {e).  [See  Harrington  v.  Keteltas,  92  N.  Y. 
40  ;  Morris  v.  French,  106  Mass.  326  ;  Banfield  v.  Whipple,  10  Allen,  27  ; 
People  V.  Ah  Fook,  64  Cal.  380.] 


Chap.  II.]         THE  LAW  OF  EVIDENCE.  15 


before  B's  murder,  and  that  A  at  or  before  that  time  used  expressions 
showing  malice  against  C,  are  deemed  to  be  relevant  as  showing  a  motive 
on  A's  part  to  murder  B.' 

(^Lib)  [The  question  is,  whether  A  murdered  B. 

The  fact  that  A  had  been  living  in  adultery  with  B's  w-ife  is  deemed  to 
be  relevant,  as  showing  motive. ^ 

The  fact  that  B  had  been  personally  pressing  A  for  payment  of  a  debt 
which  A  had  no  means  to  pay  is  deemed  to  be  relevant,  for  a  like 
reason. ]3 

{b)  The  question  is,  whether  A  committed  a  crime. 

The  fact  that  A  procured  the  instruments  with  which  the  crime  was 
committed  is  deemed  to  be  relevant.* 

(be)  [A,  B,  and  C  are  tried  for  the  murder  of  D. 

The  facts  that  at  the  time  of  the  alleged  crime  these  persons  were 
members  of  a  secret  society,  organized  for  the  commission  of  crirrtes  of 
violence  against  person  and  property,  and  for  the  protection  of  one  an- 
other from  detection  and  punishment,  and  that  on  the  night  before  the 
murder  they  met  together  and  planned  its  commission,  are  deemed  to 
be  relevant.]* 

(c)  A  is  accused  of  a  crime. 

The  facts  that,  either  before  or  at  the  time  of,  or  after  the  alleged 
crime,  A  caused  circumstances  to  exist  tending  to  give  to  the  facts  of 
the  case  an  appearance  favorable  to  himself,  or  that  he  destroyed  or 
concealed  things  or  papers,  or  prevented  the  presence  or  procured  the 
absence  of  persons  who  might  have  been  witnesses,  or  suborned  persons 
to  give  false  evidence,  are  deemed  to  be  relevant." 


1  R.  v.  Clcwes,   4  C.  &  P.  221.      [See  Sayres  v.  Comm.  88   Pa.  St.  291  ; 

McCtte  v.  Comm.,  78  id.  185  ;  State  v.  Dickson,  78  Mo.  438.] 

"  [Comm.  v.  Ferrigan,  44   Pa.   St.   386  ;  see   105  Mass.  458  ;  Pierson  v. 

People,  79  N.  Y.  424  ;  Rei»hartv.  People,  82  N.  Y.  607.] 
3  [Comm.  v.  Webster,  5  Cush.  295  ;  see  97  Mass.  566.] 
*  R.   V.  Palmer   (passim).     [Comm.    v.   Blair,    126   Mass.  40;   Colt  v. 

People,  I  Park.  Cr.  611  ;  see  La  Beau  v.  People,  6  id.  371,  34  N.  Y.  223.] 
''[Hester  \.  Comm.,  85  Pa.  St.  139;  AIcManus  \.  Comm.,  91  id.  57.] 
'  R.  v.  Patch,   Wills'  Circ.  Ev.  230;  R.  v.  Palmer,   tib.    sup.   (passim). 

[Thus   the  concealment  of  an  accused  person  to  avoid  arrest  may  be 

shown   (Comm.   v.    ToUiver,    119  Mass.   312;  Ryan  v.  People,  79  N.  Y. 

593)  ;  the  act  of  writing  letters  to  fasten  the  crime  on  others  (Gardiner  v. 

People,  6  Park.  Cr.  157)  or  to  keep  a  witness  away  from  the  trial  (.4dams 

v.  People,  9  Hun,  89).     As  to  suborning  witnesses,  see  Donohue\,  People, 

56  N.  Y.  208  ;  Murray  v.  Chase,  134  Mass.  92.] 


i6  A  DIGEST  OF  [Part  I. 

(</)  The  question  is,  whether  A  committed  a  crime. 

The  facts  that,  after  the  commission  of  the  alleged  crime,  he  ab- 
sconded, or  was  in  possession  of  property  or  the  proceeds  of  property 
acquired  by  the  crime,  or  attempted  to  conceal  things  which  were  or 
might  have  been  used  in  committing  it,  and  the  manner  in  which  he 
conducted  himself  when  statements  on  the  subject  were  made  in  his 
presence  and  hearing,  are  deemed  to  be  relevant.' 
I_  (e)  The  question  is,  whether  A  suffered  damage  in  a  railway  accident. 

The  fact  that  A  conspired  with  B,  C,  and  D  to  suborn  false  witnesses 
in  support  of  his  case  is  deemed  to  be  relevant,'''  as  conduct  subsequent 
to  a  fact  in  issue  tending  to  show  that  it  had  not  happened. 

Article  8.* 

statements  accompanying  acts,  complaints,  state- 
ments in  presence  of  a  person. 

Whenever  any  act  may  be  proved,  statements  accompanying 
and  explaining  that  act  made  by  or  to  the  person  doing  it  may 
be  proved,  if  they  are  necessary  to  understand  it.^ 


*  See  Note  V.  [and  Art.  3,  note.] 
'  Common  practice.  [Thus  an  accused  person's  flight  may  be  shown 
{Comnt.  V.  Annis,  15  Gray,  197  ;  Cummis  v.  People^  42  Mich.  142  ;  Fox  v. 
People,  95  111.  71)  ;  his  attempted  escape  from  jail  {State  v.  A'fallon,  75  Mo. 
355)  ;  his  advice  to  an  accomplice  to  escape  (People  \.  Rathbun,  21  Wend. 
509)  ;  his  possession  of  property  obtained  by  the  crime  (Stover  v.  People,  56 
N.  Y.  315  ;  Linsday  v.  People,  63  N.  Y.  143  ;  Comm.  v.  Parmenter ,  101 
Mass.  211  ;  Brown  v.  Comnt.,  76  Pa.  St.  319) ;  his  acts  in  disposal  of  such 
property  (Foster  v.  People^  63  N.  Y.  619)  ;  his  giving  a  false  account  of 
himself  when  arrested  (Comm.  v.  Goodwin,  14  Gray,  55)  ;  his  conduct 
after  the  crime  was  committed  (Greenfield  \.  People,  85  N.  Y.  75  ;  People 
V.   Welsh^  63  Cal.  167)  ;  and  see  Rtiloff's  case,  11  Abb.  Pr.  (N.  S.)  245.] 

2  Moriarty  v.  London,  Chatham  and  Dover  Ry.  Co.,  L.  R.  5  Q.  B.  314  ; 
compare  Gery  v.  Redman,  L.  R.  i  Q.  B.  D.  161.  \_E^an  v.  Bowker,  5 
Allen,  449 ;  Heslop  v.  Heslop,  82  Pa.  St.  537  ;  Lyons  v.  Lawrence,  12 
Bradw.  531  ;  so  as  to  bribing  a  juror,  Hastings  v.  Stetson,  130  Mass.  76; 
Taylor  v.  Gilman,  60  N.  H.  506  ;   see  Note  6,  supra.'\ 

3  Illustrations  (^7)  \_(ab)  {ac)^  and  (/').  Other  statements  made  by  such 
persons  are  relevant  or  not  according  to  the  rules  as  to  statements  here- 
inafter contained.     See  ch.    iv.  post.     \_Swift  v.  Life  Ins.  Co.,  63  N.  Y. 


Chap.  II.]         THE  LAW  OF  EVIDENCE,  \f 

In  criminal  cases  [of  rape]  the  conduct  of  the  person  against 
whom  the  offence  is  said  to  have  been  committed,  and  in  par- 
ticular the  fact  that  [she]  made  a  complaint  soon  after  the 
offence  to  persons  to  whom  [she]  would  naturally  complain, 
are  deemed  to  be  relevant  ;  but  the  terms  of  the  complaint  it- 
self seem  to  be  deemed  to  be  irrelevant.' 


i86,  190  ;  K'nigsford  v.  Hood,  105  Mass.  495  ;  Place  v.  Gould,  123  M*ss. 
347  ;  Merkel's  Apjieal,  89  Pa.  St.  340.] 

'  Illustration  (r).  [The  form  in  which  this  rule  is  stated  by  Mr.  Stephen 
makes  it  applicable  to  all  criminal  cases  (he  omits  the  words  "  of  rape  " 
and  has  "  he"  for  "  she  "  in  the  third  and  fourth  lines),  but  the  rule  is 
regarded  in  this  country  as  one  peculiar  to  cases  of  rape,  and  it  is  at 
least  questionable  whether  it  applies  to  other  crimes  even  under  English 
law.  There  appear  to  be  only  two  English  decisions  extending  the  rule 
to  other  crimes  than  rape,  and  they  are  ho^h.tiis'i.  prius  cases  and  of  slight 
value.  (This  subject  is  fully  discussed  in  the  Am.  Law  Rev.,  xiv. 
829-838  ;  and  see  Haynes  v.  Comm.  28  Gratt.  942.)  Still  the  doctrine  of 
res  gestce,  as  applied  to  other  crimes,  is  sometimes  extended  so  far  as  to 
make  the  analogy  to  cases  of  rape  a  noticeable  one.  See  Driscoll  v. 
People,  47  Mich.  413. 

This  rule,  as  applied  to  cases  of  rape,  is  fully  supported  by  American 
decisions.  Baccio  v.  People,  41  N.  Y.  265  ;  Higg-ins  v.  People,  58  Id.  377 ; 
State  V.  Ivins,  36  N.  J.  L.  233  ;  State  v.  Richards,  33  la,  420  ;  Thomson 
V.  State,  38  Ind.  39  ;  State  v.  Warner,  74  Mo.  83.  In  these  cases  evi- 
dence of  the  particulars  of  the  complaint  was  held  not  admissible,  but  in 
some  States  it  is  admitted.  State  v.  Kinney,  44  Ct.  153  ;  Burt  v.  State, 
23  O.  St.  394  Nor  is  it  necessary,  by  some  decisions,  that  the  com- 
plaint be  made  "soon  after''  the  offence,  but  the  lapse  of  time  may  be 
considered  by  the  jury  as  affecting  the  weight  of  the  evidence  {State  v. 
Byrne,  47  Ct.  465  ;  State  v.  Niles,  47  Vt.  82  ;  see  Maillet  v.  People,  42 
Mich.  262)  ;  so  the  delay  may  be  explained  {Baccio  v.  People,  supra). 

The  making  of  a  complaint  is  said  to  be  admissible,  not  as  constituting 
part  of  the  res  gestce,  but  as  a  fact  corroborative  of  the  testimony  of  the 
complainant  (Gr.  Ev.  iii.  §  213  ;  Baccio  v.  People,  41  N.  Y.  265,  268 ; 
Am.  Law  Rev.,  xiv.  832  ;  if  she  is  incompetent  to  testify  the  evidence  is 
not  received.  Hornbeck  v.  State,  35  O.  St.  277).  But  Mr.  Stephen  ap- 
pears to  regard  it  as  within  the  doctrine  of  res  gestce  (see  Note  V.  in  Ap- 
pendix). 

The  particulars  of  the  complaint  may  be  brought  out  by  the  defendant 
on  cross-examinatioa.     State  v.  Jones,  61  Mo.  232.] 


A  DIGEST  OF  [Part  I. 


When  a  person's  conduct  is  in  issue  or  is,  or  is  deemed  to  be, 
relevant  to  the  issue,  statements  made  in  his  presence  and 
hearing  by  which  his  conduct  is  likely  to  have  been  affected, 
are  deemed  to  be  relevant.' 

Illustrations. 

(tf)  The  question  is,  whether  A  committed  an  act  of  bankruptcy,  by 
departing  the  realm  with  intent  to  defraud  his  creditors. 

Letters  written  during;  his  absence  from  the  realm,  indicating  such  an 
intention,  are  deemed  to  be  relevant  facts.^ 

{ab)  [The  question  is,  whether  a  written  paper  which  A  destroyed  was 
his  will,  and  what  was  his  intent  in  destroying  it. 

Statements  made  by  A  at  the  time  of  destruction  that  the  paper  was 
his  will  and  giving  his  reasons  for  the  act  were  deemed  to  be  relevant. 
But  statements  made  after  the  destruction  were  deemed  not  to  be 
relevant.  J3 

(rtc)  [The  question  is,  whether  a  person  is  domiciled  in  the  town  of  B. 


'  K.  V.  Edmunds,  6  C.  &  P.  164  ;  Neil  v.  Jaklc,  2  C.  &  K.  709.  [Illus- 
tration  {d).  This  is  because  tacit  acquiescence  in  such  statements  may 
be  deemed  an  admission  of  their  truth.  The  rule  applies  when  the  state- 
ments made  impute  a  crime,  as  well  as  in  other  cases  (^Kellcy  v.  People, 
55  N.  Y.  565  ;  Comm.  v.  Galavan,  g  Allen,  271;  Ettinger  y.  Comm.,gi 
Pa.  St.  338  ;  State  v.  J?eed,  62  Me.  129  ;  jfewett  v.  Banning,  21  N.  Y.  27)  ; 
but  it  does  not  apply  if  the  person  be  incapable  of  hearing  or  understand- 
ing the  statements,  though  these  are  made  in  his  presence.  Lanergan  v. 
People,  39  N.  Y.  39 ;  Wright  v.  Maseras,  56  Barb.  521  ;  Tufts  v.  Charles- 
town,  4  Gray,  537  ;  Comm.  v.  Elmey,  126  Mass.  49.  So  if  the  statements 
are  made  in  a  judicial  proceeding,  silence  does  not  admit  their  truth, 
since  there  is  no  opportunity  to  respond.  People  v.  Willett,  92  N.  Y.  29  ; 
Johnsonv.  Holliday,  79  Ind.  151  ;  but  see  Blanchard  \.  Hodgkins.,  62  Me. 
119.  Nor  does  "  silence  give  consent  "  if  the  circumstances  are  such  as 
would  not  naturally  call  for  a  reply  or  explanation.  Drury  v.  Hervey,  126 
Mass.  519  ;  Kelley  v.  People,  55  N.  Y.  565,  571  ;  see  further  Talcott  v. 
Harris,  93  N.  Y.  567.  If  a  reply  is  actually  made  in  any  case,  it  is  ad- 
missible in  evidence  with  the  statement.  Comm.  v.  Brown,  121  Mass.  69  ; 
see  Art.  21,  post.] 

^  Rawson  v.  Haigh,  2  Bing.  99;  Bateman  v.  Bailey,  5  T.  R.  512. 

=  [Eighmy  v.  People,  79  N.  Y.  546  ;  Waterman  v.  Whitney,  11  N.  Y. 
157] 


Chap.  II.]         THE  LAW  OF  EVIDENCE.  19 

Statements  made  by  him,  after  he  had  left  B  and  was  living  elsewhere, 
that  B  was  his  home  are  deemed  to  be  relevant.]' 

{h)  The  question  is,  whether  A  was  sane. 

The  fact  that  he  acted  upon  a  letter  received  by  him  is  part  of  the  facts 
in  issue.  The  contents  of  the  letter  so  acted  upon  are  deemed  to  be 
relevant,  as  statements  accompanying  and  explaining  such  conduct. ^ 

(c)  The  question  is,  whether  A  was  ravished. 

The  fact  that,  shortly  after  the  alleged  rape,  she  made  a  complaint 
relating  to  the  crime,  and  the  circumstances  under  which  it  was  made, 
are  deemed  to  be  relevant,  but  not  (it  seems)  the  terms  of  the  complaint 
itself.3 

The  fact  that,  without  making  a  complaint,  she  said  that  she  had  been 
ravished,  is  not  deemed  to  be  relevant  as  conduct  under  this  article, 
though  it  might  be  deemed  to  be  relevant  {e.g.^  as  a  dying  declaration 
under  article  26. 

{d)  [The  question  is,  whetlier  A  committed  arson. 

The  fact  that  at  the  fire  or  soon  afterwards  A's  son  said  to  him  "  What 
did  you  want  to  set  this  afire  for?  "  and  that  he  made  no  reply,  is  deemed 
to  be  relevant.  ]< 

Article  9. 
facts  necessary  to   explain  or  introduce  relevant 

FACTS. 

Facts  necessary  to  be  known  to  explain  or  introduce  a  fact 
in  issue  or  relevant  or  deemed  to  be  relevant  to  the  issue,  or 


'  [  Wilson  v.  Terry,  9  Allen,  214  ;  Roberts'  Will,  8  Pai.  519  ;  so  where 
a  person  on  leaving  home  states  his  reasons  for  so  doing,  such  declara- 
tions are  admissible,  but  not  those  made  subsequently,  yohnson  v.  Shcr- 
7uin,  3  Gray,  374  ;  Hunter  v.  State,  40  N.  J.  L.  495  ;  Cattison  v.  Cattison,  22 
Pa.  St.  275  ;  Robinson  v.  State,  57  Md.  14.  So  replies  given  at  the  house 
of  an  absent  defendant  to  the  sheriff,  who  is  attempting  to  serve  process 
upon  him,  are  admissible  to  show  whether  he  can  be  found  or  is  evading 
service.     Buswell  v.  Lincks,  8  Daly,  518  ;  Gr.  Ev.  i.  %  loi.] 

"  Wright  V.  Doe  d.   Tatham.  7  A.  &  E.  324-5  (per  Denman,  C.  J.). 

^  R.  V.  Walker,  2  M.  «&  R.  212.  See  Note  V.  [In  a  late  English  case 
evidence  was  received  of  the  particulars  of  the  complaint.  R.  v.  WooJ,  14 
C.  C.  C.  46.] 

*[_Comm,  y,  Brailey,  134  Mass.  527.] 


A  DIGEST  OF  [Part  I. 


which  support  or  rebut  an  inference  suggested  by  any  such 
fact,  or  which  estabUsh  the  identity  of  any  thing  or  person 
whose  identity  is  in  issue  or  is,  or  is  deemed  to  be,  relevant  to 
the  issue,  or  which  fix  the  time  or  place  at  which  any  such  fact 
happened,  or  which  show  that  any  document  produced  is 
genuine  or  otherwise,  or  which  show  the  relation  of  the  parties 
by  whom  any  such  fact  was  transacted,  or  which  afforded  an 
opportunity  for  its  occurrence  or  transaction,  or  which  are 
necessary  to  be  known  in  order  to  show  the  relevancy  of  other 
facts,  are  deemed  to  be  relevant  in  so  far  as  they  are  necessary 
for  those  purposes  respectively.^ 

I/lustrations. 

{a)  The  question  is,  whether  a  writing  published  by  A  of  B  is  hbellous 
or  not. 

The  position  and  relations  of  the  parties  at  the  time  when  the  libel  was 
published  may  be  deemed  to  be  relevant  facts  as  introductory  to  the 
facts  in  issue. 

The  particulars  of  a  dispute  between  A  and  B  about  a  matter  uncon- 
nected with  the  alleged  libel  are  not  deemed  to  be  relevant  under  this 
article,  though  the  fact  that  there  was  a  dispute  may  be  deemed  to  be 
relevant  if  it  affected  the  relations  between  A  and  B.^ 

(i^)  The  question  is,  whether  A  wrote  an  anonymous  letter,  threatening 
B,  and  requiring  B  to  meet  the  writer  at  a  certain  time  and  place  to 
satisfy  his  demands. 

The  fact  that  A  met  B  at  that  time  and  place  is  deemed  to  be  relevant, 
as  conduct  subsequent  to  and  affected  by  a  fact  in  issue. 


'  [As  to  evidence  of  identity,  see  Udder zook  v.  Comm.,  76  Pa.  St.  340  ; 
State  V.  VVitham,  ■j'z  Me.  531  ;  of  the  relations  of  the  parties,  Metzger  v. 
Doll,  91  N.  Y.  365  ;  Craig's  Appeal,  77  Pa.  St.  448  ;  People  v.  Dennis,  39 
Cal.  625.  For  other  cases  of  relevant  evidence  under  this  article,  see 
Pontius  v.  People,  82  N.  Y.  339,  350  ;  Bronner  v.  Frauenthal,  37  N.  Y. 
166 ;  Quincey  v.  White,  63  N.  Y.  370,  380  ;  Comm.  v.  Annis,  15  Gray,  197  ; 
Comm.  V.  Williams,  105  Mass.  62  ;  iXorrisv.  Spofford,  127  Id.  85  ;  Wagen- 
seller  v.  Immers,  97  Pa.  St.  465  ;  for  cases  of  irrelevant  evidence,  see  Reed 
V.  N.  Y.  C.  R.  Co.,  45  N.  Y.  574  ;  Eggler  v.  People,  56  N.  Y.  642  ;  Phil. 
R.  Co.  V.  Henrice,  92  Pa.  St.  431  ;  Thompson  v.  Bowie,  4  Wall.  463; 
Graves  v.  Jacobs,  8  Allen,  141.] 

*  Common  practice  ;   [see  Fowler  v.  Chichester,  26  O.  St.  9.] 


Chap.  I  I.J         THE  LAW  OF  EVIDENCE,  21 


The  fact  that  A  liad  a  reason,  unconnected  witli  the  letter,  for  being  at 
that  time  at  that  jilace,  is  deemed  to  be  relevant,  as  rebutting  the  in- 
ference suggested  by  his  presence.' 

(r)  A  is  tried  for  a  riot,  and  is  proved  to  have  marched  at  the  head  of 
a  mob.  The  cries  of  the  mob  are  deemed  to  be  relevant,  as  explanatory 
of  the  nature  of  the  transaction.* 

(i/)  The  question  is,  whether  a  deed  was  forged.  It  purports  to  be 
made  in  the  reign  of  Philip  and  Mary,  and  enumerates  King  Philip's  titles. 

Tiie  fact  that  at  the  alleged  date  of  the  deed,  Acts  of  State  and  other 
records  were  drawn  with  a  different  set  of  titles,  is  deemed  to  be  rele- 
vant.' 

(<f)  The  question  is,  whether  A  poisoned  B.  Habits  of  B  known  to  A, 
which  would  afford  A  an  opportunity  to  administer  the  poison,  are 
deemed  to  be  relevant  facts.* 

(/")  The  question  is,  whether  A  made  a  will  under  undue  influence. 
His  way  of  life  and  relations  with  the  persons  said  to  have  influenced 
him  unduly,  are  deemed  to  be  relevant  facts.^ 

(.?■)  [The  question  is,  whether  A,  an  infant  child,  who  was  killed  while 
on  his  way  from  England  to  this  country,  was  domiciled  in  New  York 
State  at  the  time  of  his  death. 

The  fact  that  his  father,  having  resided  in  England,  had  lived  in  New 
York  several  months  prior  to  A's  death,  and  had  come  there  for  the  pur- 
pose of  making  his  home  and  living  in  that  State,  is  deemed  to  be  rele- 
vant.]" 

(//)  [The  question  is,  whether  a  gold  watch,  chain,  and  locket  sold  to  a 
wife,  are  necessaries,  for  which  the  husband  should  pay. 

The  fact  that  the  husband  wore  diamonds  and  kept  a  fast  horse,  and 
had  paid  for  silk  dresses  worn  by  her,  is  deemed  to  be  relevant.]^ 


'  R.  v.  Barnard,  19  St.  Tri.  815,  &c.  [S.  P.  Prindle  v.  Glover^  4  Ct. 
266;   Comin.  V.  Brady,  7  Gray,  320;    Tracy  v.  McMantis,  58  N.  Y.  257.] 

*  R.  V.  Lord  George  Gordon,  21  St.  Tri.  520.  [See  Stone  v.  Segtir^  11 
Allen,  568.] 

3  Lady  Ivy's  Case,  10  St.  Tri.  615. 

••  R.  V.  Donellan,  Wills'  Circ.  Ev.  192  ;  and  see  my  '  General  View  of 
the  Criminal  Law,'  p.  338,  &c. 

'  Boyse  v.  Rosshorough,  6  H.  L.  C.  42-58.  [Horn  v.  Pullman,  72  N.  Y. 
269;  Coit  v.  Patchcn,  77  N.  Y.  533;  May  v.  Bradlee,  127  Mass.  414; 
Pierce  v.  Pierce,  38  Mich.  412  ;  pyew  v.  Clarke,  80  Pa.  St.  170 ;  Griffith 
V.  Diffenderffer^  50  Md.  466;  Kenyon  v.  Ashbridge^  35  Pa.  St.  157.] 

»  [Kennedy  v.  Ryall,  67  N.  Y.  379.] 

'  [Raynes  v.  Bennett^  114  Mass.  424.] 


22  A  DIGEST  OF  [Part  I. 

(/■)   [The  question  is,  whether  A  was  employed  by  B. 

Conduct  of  A  during  the  term  of  such  employment,  inconsistent  with 
the  theory  of  such  employment,  is  deemed  to  be  a  relevant  fact.]' 

(y)  [The  question  is,  whether  A  has  survived  his  partner  B. 

Evidence  that  a  person  having  the  same  name  as  B  has  died  at  the 
place  of  B's  residence,  is  deemed  to  be  relevant.]^ 

{k)  [The  question  is,  whether  A  has  been  appropriating  his  employer's 
property. 

The  fact  that  for  several  years  A  has  been  living  beyond  his  apparent 
means  is  deemed  to  be  relevant. ]3 

(/)  [The  question  is,  whether  A  murdered  B. 

Evidence  is  relevant  which  tends  to  identify  a  body  found  six  months 
after  B's  disappearance  as  that  of  B  by  showing  similarity  in  the  color  of 
the  hair,  in  the  size  of  the  body,  in  the  appearance  of  the  teeth,  etc. 
Evidence  of  the  following  facts  is  also  deemed  relevant :  —that  blood- 
stains were  found  on  boards  where  an  accomplice  of  A  testified  the  body 
of  B  had  been  placed ;  that  these  stains  were  of  human  blood  ;  that  A 
had  B's  watch  in  his  possession  a  few  months  after  B's  disappearance  ; 
that  the  accomplice  was  absent  from  home  on  the  night  when,  as  he 
swore,  he  aided  A  in  removing  the  body  to  another  place  ;  that  A  was 
seen  on  this  night  to  ride  in  the  direction  of  this  place.]' 

(m)  [The  question  is,  whether  A,  a  physician,  has  been  guilty  of  mal- 
practice and  neglect. 

The  fact  that  A  has  not  presented  any  bill  or  asked  any  pay  for  his 
services  is  deemed  not  to  be  relevant.]^ 

(«)  [The  question  is,  whether  a  credit  for  goods  sold  was  given  to  the 
defendant  or  his  son. 

Evidence  that  the  son  had  no  property  at  the  time  of  the  sale  and  was 
entirely  irresponsible,  is  deemed  not  to  be  relevant.]" 

(o)  [The  question  is,  whether  an  executor  is  liable  to  pay  a  note  of 
long  standing,  signed  by  his  testator. 

Evidence    that   the   testator   was   in   the   habit   of    paying    his   debts 


1  [Miller  v.  Irish,  63  N.  Y.  652.] 

2  [Daby  v.  Ericsson,  45  N.  Y.  786  ] 

3  [Hacked  V.  ICing,  8  Allen,  144.] 

*  [Linsdtiy  v.  People,  63  N.  Y.  143 ;  see  Murphy  v.  People,  63  N.  Y. 
590 ;  Greenfield  v.  People,  85  N.  Y.  75 ;  Comm.  v.  Dorsey,  103  Mass. 
412.] 

6  [Bairdv.  Gillett,  47  N.  Y.  186.] 

'  [Green  v.  Disbrow,  56  N.  Y.  334  ;  but  see  Moore  v.  Meacham,  10  N.  Y. 
207.] 


Chap.  II.]        THE  LAW  OF  EVIDENCE,  23 

promptly,  or  that  another  person  had  agreed  to  pay  them  for  him,  or 
that  he  made  a  list  of  his  debts  in  which  this  note  was  not  included,  is 
deemed  not  to  be  relevant.]  ' 

(/)   [The  question  is,  whether  A  is  the  father  of  B,  a  young  child. 

Evidence  that  B  resembles  A,  or  counter-evidence  to  show  non-resem- 
blance, is  deemed  not  to  be  relevant. ^  But  if  both  A  and  B  are  in  court, 
the  jury  may  take  into  consideration  their  resemblance  or  non-resem- 
blance] - 

(<7)  [The  question  is,  whether  A  is  insane. 

The  fact  that  his  father,  mother,  or  other  blood  relation  is  or  has  been 
insane,  is  deemed  to  be  relevant.]  < 


'  [Abercrombie  v.  Sheldon,  8  Allen,  S32.] 

^  [  Youn£  V.  Makepeace,  103  Mass.  50  ;  Jones  v.  yones,  45  Md.  144 ; 
EMy  v.  Gray,  4  Allen,  435  ;  cf.  People  v.  Carney,  29  Hun,  47  ;  but  see 
Paulk  v.  State,  52  Ala.  427.] 

•''  [Gilmanton  v.  Ham,  38  N.  H.  108  ;  Finnegan  v.  Dugan,  14  Allen, 
197  ;  contra,  Reitz  v.  State,  33  Ind.  187  ;  State  v.  Danforth,  48  la.  43.] 

■»  \_State  V.  Hoyt,  47  Ct.  518  ;   Walsk  v.  People^  88  N.  Y.  458.] 


24  A  DIGEST  OF  [Part  I. 


CHAPTER   III. 

OCCURRENCES  SIMILAR  TO  BUT  UNCONNECTED 
WITH  THE  FACTS  IN  ISSUE,  IRRELEVANT  EXCEPT 
IN   CERTAIN   CASES. 

Article  io.* 
similar  but  unconnected  facts. 

A  FACT  which  renders  the  existence  or  non-existence  of  any 
fact  in  issue  probable  by  reason  of  its  general  resemblance 
thereto,  and  not  by  reason  of  its  being  connected  therewith, 
in  any  of  the  ways  specified  in  articles  3-9  both  inclusive, 
is  deemed  not  to  be  relevant  to  such  fact  except  in  the  cases 
specially  excepted  in  this  chapter.' 

Illustrations. 

(a)  The  question  is,  whether  A  committed  a  crime. 
The  fact  that  he  formerly  committed  another  crime  of  the  same  sort, 
and  had  a  tendency  to  commit  such  crimes,  is  irrelevant.^ 


*  See  Note  VL 

'  [But  where  the  question  is  as  to  the  cause  of  a  certain  occurrence, 
the  fact  that  similar  occurrences  have,  under  like  conditions,  been  pro- 
duced by  a  particular  cause  is  deemed  to  be  relevant.  So  the  quality 
of  an  act,  as  prudent  or  negligent,  safe  or  dangerous,  etc.,  may  be  exhib- 
ited, by  showing  that  under  like  conditions  it  has  produced  similar  favor- 
able or  injurious  results,  as  in  the  case  in  question  (see  illustrations  k  to 
}/i).  This  rule  is  analogous  to  that  stated  in  Article  12,  post.  But  if 
the  conditions  are  not  substantially  the  same  in  all  cases,  the  evidence  is 
not  relevant.  Morse  v.  Minii.  etc.  R.  Co.,  30  Minn.  465  ;  Hunt  v.  Loi.uell 
Gas  Co.,  8  Allen,  169;  Emerson  v.  Lowell  Gas  Co.,  3  id.  410  ;  Grijin  v. 
Auburn,  58  N.  H.  121  ;  Hodgkins  v.  Chappell,  128  Mass.  197.] 

2  R.  v.  Cole.  I  Phi.  Ev.  508  (said  to  have  been  decided  by  all  the 
Judges  in  Mich.  Term,  1810).     \People  y.  Qibbs,  93  N.  Y.  470 ;  Coleman 


Chap.  III.]        THE  LAW  OF  EVIDENCE.  25 

(fi)  The  question  is,  whether  A,  a  brewer,  sold  good  beer  to  B,  a 
publican.  The  fact  that  A  sold  good  beer  to  C,  D,  and  E,  other  pub- 
licans, is  irrelevant'  (unless  it  is  shown  that  the  beer  sold  to  all  is  of  the 
same  brewing). - 

(f)  [The  question  is,  whether  A,  having  killed  a  person  at  night,  knew 
him  to  be  an  officer  of  the  law. 

The  fact  that  there  was  a  lighted  street-lamp  near  by  is  relevant,  as 
tending  to  show  that  A  could  see  the  official  uniform.  But  to  prove  the 
amount  of  light  cast  by  the  lamp  on  this  night,  evidence  showing  the 
amount  of  light  cast  by  the  same  lamp  on  a  night  four  months  after- 
wards is  irrelevant  (the  conditions  not  being  shown  to  be  the  same).]^ 

((/)  [The  question  is,  whether  A  has  a  right  to  travel  on  a  railroad 
ticket  after  the  time  limited  therein  for  its  use,  without  the  payment  of 
fare. 

The  fact  that  he  has  at  other  times  purchased  similar  tickets  and 
used  them  after  the  time  specified,  without  being  required  to  pay  fare, 
is  irrelevant.]  ^ 

(e)  [The  question  is,  what  is  the  value  of  a  certain  vessel. 


V.  People,  55  N.  Y.  81,  90;  Jordan  v.  Osgood,  109  Mass.  457  ;  Shaffner  v. 
Comm.,  72  Pa.  St.  60.  But  the  commission  of  another  crime  may  be 
shown,  if  it  supplies  a  motive  or  constitutes  preparation  for  the  commis- 
sion of  the  one  in  question  (Pierson  v.  People,  79  N.  Y.  424  ;  Comm.  v, 
Choate,  105  Mass.  451,  458  ;  Hope  v.  People,  83  N.  Y.  418  ;  see  Art.  7, 
supra)  ;  or  if  it  tends  to  prove  any  fact  constituting  an  element  of  the 
crime  charged  (  Weed  v.  People,  56  N.  Y.  628) ;  or  if  the  different  crimes 
form  parts  of  one  general  scheme  or  transaction  and  exhibit  the  same 
general  purpose  (Comm.  v.  Campbell,  7  Allen,  541  ;  Comm.  v.  Scott,  123 
Mass.  222;  Hope  v.  People,  supra;  Brown  v.  Comm.,  76  Pa.  St.  319; 
Kramer  v.  Cotnm. ,  87  id.  299  ;  Jackson  v.  State,  38  O.  St.  585 ;  People  v. 
Mead,  50  Mich.  228  ;  Gassen-Lernier  v.  State,  52  Ala.  313)  ;  and  in  other 
like  cases  (see  Comm.  v.  Jackson,  132  Mass.  16,  19;  Goersenv.  Comm., 
99  Pa.  St.  388).  Thus  former  attempts  to  commit  the  same  crime  may 
be  proved  to  show  criminal  intent,  the  identity  of  the  actor,  etc.  Comm. 
V.  Bradford,  126  Mass.  42  ;  State  v.  Nugent,  71  Mo.  136.  These  latter 
cases  fall  properly  under  Arts.  11  and  12,  post.'\ 

'  Holcomhe  v.  He^uson,  2  Camp.  391. 

^  See  Illustrations  to  article  3. 

=  [  Yates  V.  People,  32  N.  Y.  509 ;  see  72  N.  Y.  610 ;  and  Fillo  v.  Joties, 
8  Abb.  Dec.  121.] 

*  [Hill  V.  Syracuse  etc.  Ji.  Co.,  63  N.  Y.  iqi.] 


26  A  DIGEST  OF  [Part  I. 

Evidence  to  prove  the  value  of  other  vessels  with  which  she  might  be 
compared  is  irrelevant.]' 

(_/")  [The  question  is,  whether  a  servant  was  negligent  on  a  particular 
occasion. 

Evidence  that  he  was  negligent  on  previous  occasions  is  irrelevant ; 
but  if  the  question  were  whether  the  master  was  negligent  in  retaining 
in  his  employ  a  careless  and  incompetent  servant,  evidence  of  the  ser- 
vant's prior  acts  of  negligence  to  the  master's  knowledge,  would  be  rele- 
vant. ]2 

(j)  [The  question  is,  how  much  hay  was  eaten  by  a  horse,  not  in 
ordinary  condition,  in  eight  weeks. 

Evidence  as  to  the  amount  of  hay  eaten  by  an  ordinary  horse  in  a  week 
is  irrelevant.]' 

(h)  [The  question  is,  whether  A,  having  been  injured  by  slipping  and 
falling  upon  a  sidewalk,  can  recover  damages  from  the  city  for  its  neglect 
to  keep  the  walk  in  a  safe  condition. 

The  fact  that  other  persons  slipped  and  fell  upon  the  same  walk, 
while  its  condition  remained  the  same  as  when  A  fell,  is  relevant  to 
show  that  it  was  unsafe  for  use  at  the  time  of  his  fall.]^ 

(i)  [The  question  is,  whether  the  act  or  structure  of  A  which  fright- 
ened B's  horse,  was  one  which  was  calculated  to  render  the  use  of  the 
highway  with  horses  dangerous. 

Evidence  that  other  horses  of  ordinary  steadiness  were  frightened  by 


1  \Blanchard  v.  Steamboat  Co. ,  59  N.  Y.  292  ;  see  Gouge  v.  Roberts,  53 
N.  Y.  619 ;  Bonynge  v.  Field.,  81  N.  Y.  159  ;  Lake  v.  Clark.,  97  Mass.  71  ; 
but  see  Carr  v.  Moore,  41  N.  H.  131.  But  in  Massachusetts  the  value 
of  land  may  be  proved  by  showing  the  prices  received  upon  sales  of 
Other  lands  of  like  description  in  the  vicinity  at  times  not  too  remote. 
Chandler  v.  Jamaica  etc.  Corporation,  122  Mass.  305.] 

^{Baulec  v.  iV.  Y.  etc.  R.  Co.,  59  N.  Y.  356;  Warner  v.  TV.  Y.  C.  R. 
Co.,  44  N.  Y.  465  ;  Maguire  v.  Middlesex  R.  Co..,  115  Mass.  239  ;  Gaha- 
gan  v.  B.  is'  L.  R.  Co.,  1  Allen,  187  ;  Michigan  Cent.  R.  Co.  v.  Gilbert, 
46  Mich.  176 ;  contra.  State  v.  Railroad  Co.,  52  N.  H.  528  ;  see  Art.  12.] 

3  [Carlton  v.  Hescox,  107  Mass.  410 ;  of.  Kelliker  v.  Miller,  97  Mass. 

71.] 

*  [Dist.  of  Col.  V.  Armes,  107  U.  S.  519  ;  Quintan  v.  Utica,  11  Hun, 
217,  74  N.  Y.  603  ;  Aurora  v.  Brown,  12  Bradw.  122  ;  Calkins  v.  Hart- 
ford, 33  Ct.  57 ;  cf.  Kent  v.  Lincoln,  32  Vt.  591  ;  lVo(iley  v.  Grand  St.  R. 
Co.,  83  N.  Y.  121.  But  some  cases  are  to  the  contrary.  See  Collins  v, 
Dorchester,  6  Cush.  396  ;  B^Hfr  y,  Indianapolis,  99  Ind.  56.] 


Chap.  III.]       THE  LAW  OF  EVIDENCE.  27 

the  same  act  or  structure,  or  one  of  the  same  kind  under  like  circum- 
stances, is  relevant.]' 

{/)  [The  question  is,  whether  a  loom-attachment  will  work  successfully 
on  a  certain  loom. 

The  fact  that  it  works  successfully  on  another  loom  of  substantially  the 
same -construction,  is  relevant.  ]- 

{k)  [The  question  is,  whether  a  fire  was  caused  by  sparks  and  coals 
from  a  locomotive  of  a  railroad  company. 

The  fact  that  passing  locomotives  of  similar  construction  have  on 
other  occasions  caused  fires  at  or  near  the  place  in  question  by  scattering 
sparks  and  coals,  is  deemed  to  be  relevant  ;  so  also  is  the  fact  that  they 
have  thus  repeatedly  scattered  sparks  and  coals,  though  no  actual  fires 
were  thereby  caused,  since  such  a  cause  may  have  occasioned  fire  in  this 
instance,  though  not  in  others.  But  preliminary  evidence  should  be 
given  excluding  the  probability  that  the  fire  in  question  originated  from 
another  source.]' 

(/)  [Tlie  question  is,  whether  a  fire  causing  the  destruction  of  a  cer- 
tain building  by  night  was  of  incendiary  origin. 

The  fact  that  an  attempt  was  made  on  the  same  night  to  set  fire  to  a 
neighboring  building  by  the  use  of  similar  means  is  relevant.]* 

(m)  [The  question  is,  whether  the  foundering  of  a  vessel,  while  she  is 
being  towed  by  a  tug,  is  caused  by  her  being  overladen  and  unsea- 
worthy,  or  is  due  to  the  reckless  and  improper  rate  of  speed  at  which  she 
is  towed. 

The  fact  that  she  has  been  frequently  towed  in  safety  with  as  heavy  or 
heavier  loads  and  at  as  high  a  rate  of  speed  is  deemed  to  be  relevant,  as 


'  [Crocker  v.  McGregor^  76  Me.  282;  Gordon  v.  B.  •St' Af.  R.  Co.,  58 
N.  H.  396  ;  House  v.  Metcalf,  27  Ct.  631 ;  cf.  Lewis  v.  Eastern  R.  Co.,  60 
N.  H.  187.] 

2  [Bricrly  v.  Miles,  128  Mass.  291.] 

3  [Field y.  jV.  Y.  C.  R.  Co.,  32  N.  Y.  339;  Crisi  v.  Erie  R.  Co.,  58 
N.  Y.  638  ;  G.  T.  R.  Co.  v.  Richardson,  91  U.  S.  454  ;  Pa.  R.  Co.  v. 
Stranahan,  79  Pa.  St.  405;  Boyce  v.  Cheshire  R.  Co.,  43  N.  H.  627; 
Slossen  v.  Railroad  Co. ,  60  la.  215  ;  see  Atchison  etc.  R.  Co.  v.  Stanford, 
12  Kan.  354;  Loringw.  Worcester  etc.  R.  Co.,  131  Mass.  469;  Albert  v. 
Nor.  Central  R.  Co.,  98  Pa.  St.  316.  In  some  of  these  cases  it  is  also  said 
that  evidence  of  this  kind  may  show  a  habit  of  negligence  in  running  the 
trains.  The  last  sentence  of  the  Illustration  states  a  rule  declared  by  the 
New  York  cases.] 

*  [Faucett  v.  Nicholls,  64  N.  Y.  377  ;  see  Landell  v,  Hotchkiss,  i  T.  & 
C.  580  ;  Mead  v.  Husted,  49  Ct.  336.] 


28  A  DIGEST  OF  [PART  I. 

tending  to  show  that  negligence  in  towing  must  have  caused  the  disaster. 
The  fact  that  she  has  repeatedly  foundered  while  being  carefully  towed 
is  deemed  to  be  relevant,  as  indicating  that  her  own  improper  condition 
must  have  occasioned  the  loss.]' 

Article  ii.* 

ACTS  SHOWING   INTENTION,  GOOD   FAITH,  ETC. 

When  there  is  a  question  whether  a  person  said  or  did  some- 
thing, the  fact  that  he  said  or  did  something  of  the  same  sort 
on  a  different  occasion  may  be  proved,  if  it  shows  the  existence 
on  the  occasion  in  question  of  any  intention,  knowledge,  good 
or  bad  faith,  malice,  or  other  state  of  mind,  or  of  any  state  of 
body  or  bodily  feeling,  the  existence  of  which  is  in  issue  or  is 
deemed  to  be  relevant  to  the  issue  ;  "^  but  such  acts  or  words 
may  not  be  proved  merely  in  order  to  show  that  the  person  so 
acting  or  speaking  was  likely  on  the  occasion  in  question  to  act 
in  a  similar  manner.^ 


*  See  Note  VI. 
J  [Baird  v.  Daly,   68  N.  Y.  547;    see  Weldon  v.  Harlan  R.  Co.,  5  Bos. 

576-] 

2  [This  rule  is  fully  considered  and  its  proper  limitations  stated  m  People 
V.  Shuhnan,  80  N.  Y.  373  ;  Mayer  v.  People,  id.  364  ;  Comm.  v.  yackson,  132 
Mass.  16.  See  also  Gr.  Ev.  i.  §  53  ;  Butler  v.  Waikins,  13  Wall.  456 ; 
Bottomlcy  v.  U.  S.,\  Story,  135;  Tarbox  v.  State,  38  O.  St.  581 ;  State 
V.   Wcntworth,  37  N.  H.  196  ;  p.  24,  ante,  note  2.] 

3  [At  this  point  Mr.  Stephens  adds  the  following  rule  derived  from  an 
English  statute  {34  and  35  Vict.  c.  112,  s.  19)  :  "  Where  proceedings  are 
taken  against  any  person  for  having  received  goods,  knowing  them  to  be 
stolen,  or  for  having  in  his  possession  stolen  property,  the  fact  that  there 
was  found  in  the  possession  of  such  person  other  property  stolen  within 
the  preceding  period  of  twelve  months,  is  deemed  to  be  relevant  to  the 
question  whether  he  knew  the  property  to  be  stolen  which  forms  the  sub^ 
ject  of  the  proceeding  taken  against  him. 

If,  in  the  case  of  such  proceedings  as  aforesaid,  evidence  has  been 
given  that  the  stolen  property  has  been  found  in  the  possession  of  the 
person  proceeded  against,  the  fact  that  such  person  has  within  five  years 


Chap.  III.]        THE  LAW  OF  EVIDENCE.  29 


Illustrations. 

(a)  A  is  charged  with  receiving  two  pieces  of  silk  from  B,  knowing  them 
to  have  been  stolen  by  him  from  C. 

The  facts  that  A  received  from  B  many  other  articles  stolen  by  him  from 
C  in  the  course  of  several  months,  and  that  A  pledged  all  of  them,  are 
deemed  to  be  relevant  to  the  fact  that  A  knew  that  the  two  pieces  of  silk 
were  stolen  by  B  from  C 

{b)  A  is  charged  with  uttering,  on  the  12th  December,  1854,  a  counter- 
feit crown  piece,  knowing  it  to  be  counterfeit. 

The  facts  that  A  uttered  another  counterfeit  crown  piece  on  the  nth 
December,  1854,  and  a  counterfeit  shilling  on  the  4th  January,  1855,  are 
deemed  to  be  relevant  to  show  A's  knowledge  that  the  crown  piece 
uttered  on  the  12th  was  counterfeit. ^ 

(f)  A  is  charged  with  attempting  to  obtain  money  by  false  pretences,  by 
trying  to  pledge  to  B  a  worthless  ring  as  a  diamond  ring. 

The  facts  that  two  days  before,  A  tried,  on  two  separate  occasions,  to 
obtain  money  from  C  and  D  respectively,  by  a  similar  assertion  as  to  the 
same  or  a  similar  ring,  and  that  on  another  occasion  on  the  same  day  he 
obtained  a  sum  of  money  from  E  by  pledging  as  a  gold  chain  a  chain 
which  was  only  gilt,  are  deemed  to  be  relevant,  as  showing  his  knowledge 
of  the  quality  of  the  ring.^ 


immediately  preceding  been  convicted  of  any  offence  involving  fraud  or 
dishonesty,  is  deemed  to  be  relevant  for  the  purpose  of  proving  that  the 
person  accused  knew  the  property  which  was  proved  to  be  in  his  posses- 
sion to  have  been  stolen,  and  may  be  proved  at  any  stage  of  the  proceed- 
ings ;  provided  that  not  less  than  seven  days'  notice  in  writing  has  been 
given  to  the  person  accused  that  proof  is  intended  to  be  given  of  such 
previous  conviction."  This  enactment,  he  says,  overrules  R.  v.  Oddy,  2 
Den.  C.  C.  264,  and  practically  supersedes  H.  v.  Dunn,  i  Moo.  C.  C.  150, 
and  R.  v.  Davis,  6  C.  &  P.  177.  In  this  country  such  cases  are  governed 
by  the  general  common  law  rule.     See  Illustrations  and  cases  cited.]. 

'  Dunn's  Case,  I  Moo.  C.  C.  146.  [S.  P.  Copperman  v.  People,  56  N.  Y. 
591  ;  Coleman  v.  People,  58  N.  Y.  555  ;  State  v.  Ward,  49  Ct.  429  ;  Kilrow 
V.  Cotnm.  89  Pa.  St.  480  ;  Shriedly  v.  State,  23  O.  St.  130 ;  see  Co?nm.  v. 
Jenkins,  10  Gray,  485  ;  but  the  fact  that  A  received  property  on  other 
occasions  from  other  persons  than  B,  knowing  it  to  have  been  stolen,  is 
deemed  not  to  be  relevant.     Coleman  v.  People,  55  N.  Y.  81.] 

"  R.  v.  Forster,  Dear.  456  ;  and  see  R.  v.  Weeks,  L.  &  C.  18  ;  fsee 
Comm.  V.  Bi^elow,  8  Met.  235  ;  Cofnm.  v.  Price,  lo  Gray,  472 ;  Stalker  v. 
State,  9  Ct.  341  ;  People  v.  Dibble,  3  Abb.  Dec.  518.] 

3  R.  V.  Francis,  L.  R.  2  C.  C.  R.  128.     The  case  of  R.  v.  Cooper.  L. 


30  A  DIGEST  OF  [Part  I. 

((/)  A  is  charged  with  obtaining  money  from  B  by  falsely  pretending 
that  Z  had  authorized  him  to  do  so. 

The  fact  that  on  a  different  occasion  A  obtained  money  from  C  by  a 
similar  false  pretence  is  deemed  to  be  irrelevant,'  as  A's  knowledge  that 
he  had  no  authority  from  Z  on  the  second  occasion  had  no  connection 
with  his  knowledge  that  he  had  no  authority  from  Z  on  the  first  occasion. 

(r)  A  sues  B  for  damage  done  by  a  dog  of  B's,  which  B  knew  to  be 
ferocious. 

The  facts  that  the  dog  had  previously  bitten  X,  Y,  and  Z,  and  that  they 
had  made  complaints  to  B,  are  deemed  to  be  relevant. ^ 

(/)  The  question  is,  whether  A,  the  acceptor  of  a  bill  of  exchange, 
knew  that  the  name  of  the  payee  was  fictitious. 

The  fact  that  A  had  accepted  other  bills  drawn  in  the  same  manner 
before  they  could  have  been  transmitted  to  him  by  the  payee,  if  the  payee 
had  been  a  real  person,  is  deemed  to  be  relevant,  as  showing  that  A  knew 
that  the  payee  was  a  fictitious  person. ^ 

{g)  A  sues  B  for  a  malicious  libel.  Defamatory  statements  made  by  B 
regarding  A  for  ten  years  before  those  in  respect  of  which  the  action  is 
brousrht  are  deemed  to  be  relevant  to  show  malice.* 


R.  I  Q.  B.  D.  ^C.  C.  R.)  19,  is  similar  to  R.  v.  Francis,  and  perhaps 
stronger.  [S.  P.  Mayer  v.  People,  80  N.  Y.  364;  Comm.  v.  Coe,  115  Mass. 
4S1 ;  see  People  v.  Henssler,  48  Mich.  50.  Evidence  of  this  kind  is  also 
relevant  in  civil  actions  to  prove  guilty  knowledge  or  fraudulent  purpose. 
Hill  v.  Naylor,  18  N.  Y.  588  ;  Miller  v.  Barber,  66  N.  Y.  558  ;  Lincoln 
V.  Claflin^  7  Wall.  132  ;  Hovey  v.  Grant,  52  N.  H.  569 ;  Waters'  Heater 
Co.  v.  Smith,  120  Mass.  444.] 

'  R.  V.  Holt,  Bell,  C.  C.  280  ;  and  see  R.  v.  Francis, ub.  sup.  p.  130  \Comm, 
V.  yackso7i,  132  Mass.  16 ;  but  see  People  v.  Shulman,  80  N.  Y.  373  | 

2  See  cases  collected  in  Roscoe's  Nisi  Prius,  739.  [See  Godeau  v. 
Blood,  52  Vt.  251  ;   Green  etc.  R.  Co.  v.  Bresner,  97  Pa.  St.  103;  Rider  v, 

VVkite,  65  N.  Y.  54  ;  Midler  v.  McKesson,  7^  N.  Y.  195.] 

3  Gibson  v.  Hunter,  2  H    Bl.  288. 

*  Barrett  v.  Long,  3  H.  L.  C.  395,  414.  [Evening  yournal  Ass^n.  v. 
McDermott,  44  N.  J.  L.  430 ;  State  v.  Riggs,  39  Ct.  498.  It  is  generally 
held  that  the  charges  proved  to  show  malice  must  be  substantially  simi- 
lar to  the  one  in  question.  Comm.  v.  Damon,  136  Mass.  441,  448  ;  Brown 
V.  Barnes,  39  Mich.  211  ;  Cavatiaugh  v.  Austin,  42  Vt.  576;  Howard  v. 
Sexton,  4  N.  Y.  157.  In  some  States  they  may  be  proved  though  made 
after  suit  brought  {Chamberlain  v.  Vance,  51  Cal.  75  ;  Knapp  v.  Smith, 
55  Vt.  311),  but  not  in  others.  Distin  v.  Rose,  69  N.  Y.  122  ;  Daly  v. 
Byrne,  "ji  N.  Y.  182.     Sometimes  also  they  are  received  to  enhance  the 


Chap.  III.J        THE  LAW  OF  EVIDENCE.  31 


(ga)  [The  question  is  whether  A  committed  adultery  with  B. 

The  fact  that  on  other  occasions,  not  too  remote,  these  persons  had 
committed  adultery  is  deemed  to  be  relevant,  to  show  the  existence  of  an 
adulterous  disposition  ;  but  not  to  show  the  commission  of  the  particular 
act  in  question.]' 

(//)  A  is  sued  by  B  for  fraudulently  representing  to  B  that  C  was  solvent, 
whereby  B,  being  induced  to  trust  C,  who  was  insolvent,  suffered  loss. 

The  fact  that,  at  the  time  when  A  represented  C  to  be  solvent,  C  was 
to  A's  knowledge  supposed  to  be  solvent  by  his  neighbors  and  by  per- 
sons dealing  with  him,  is  deemed  to  be  relevant,  as  showing  that  A  made 
the  representation  in  good  faith. - 

(/')  A  is  sued  by  B  for  the  price  of  work  done  by  B,  by  the  order  of  C, 
a  contractor,  upon  a  house,  of  which  A  is  owner. 

A's  defence  is  that  B's  contract  was  with  C. 

The  fact  that  .\  paid  C  for  the  work  in  question  is  deemed  to  be  rele- 
vant, as  proving  that  A  did,  in  good  faith,  make  over  to  C  the  manage- 
ment of  the  work  in  question,  so  that  C  was  in  a  position  to  contract  with 
B  on  C's  own  account,  and  not  as  agent'for  A.' 

{j )  A  is  accused  of  stealing  property  which  he  had  found,  and  the 
question  is,  whether  he  meant  to  steal  it  when  he  took  possession  of  it. 

The  fact  that  public  notice  of  the  loss  of  the  property  had  been  given 
in  the  place  where  A  was,  and  in  such  a  manner  that  A  knew  or  probably 
might  have  known  of  it,  is  deemed  to  be  relevant,  as  showing  that  A  did 
not,  when  he  took  possession  of  it,  in  good  faith  believe  that  the  real 
owner  of  the  property  could  not  be  found. ^ 


damages  {Leonard  \.  Pope,  2.7  Mich.  145),  but  not  in  most  States  {Meyer 
v.  Ilolitjini^,  44  Ind.  238  ;  see  A/pin.  v.  Morton,  21  O.  St.  536);  and  so  there 
are  other  differences  of  doctrine.] 

'  \^Comm.  V.  A'iehols,  114  Mass.  285  ;  Thayer  v.  Thayer,  loi  id.  in  ; 
atate  V.  Williams,  76  Me.  480;  Sherwood  \.  Titman,  55  Pa.  St.  77  ;  Slate 
V.  Brid^-man,  49  Vt.  202;  State  v.  Alar  kins,  95  Ind.  464  ;  Conway  v.  Nicol, 
34  la.  533  ;  see  People  v.  Carrier,  46  Mich.  442.] 

''  Sheen  v.  Buinpstead,  2  H.  &  C.  193  ;  [see  Slingerlatid  v.  Bennett,  6 
T.  &  C.  446  ;  IVhitcher  v.  Shattiick,  3  Allen,  319  ;  Forbes  v.  Howe,  102 
Mass.  427.] 

3  Gerish  v.  Chartier,  1  C.  B.  13  ;  [see  Moody  v.  Tenney,  3  Allen,  327  ; 
Jiej^an  v.  Dickinson,  105  Mass.  112.] 

*  This  illustration  is  adapted  from  Preston's  Case,  2  Den.  C.  C.  353  ;  but 
the  misdirection  given  in  that  case  is  set  right.  As  to  the  relevancy  of 
the  fact,  see  in  particular  Lord  Campbell's  remark  on  p.  359.  [Cf 
Kellogg  \.  French,  15  Gray,  354.] 


32  A  DIGEST  OF  [Part  I. 


(^)  The  question  is,  whether  A  is  entitled  to  damages  from  B,  the 
seducer  of  A's  wife. 

The  fact  that  A's  wife  wrote  affectionate  letters  to  A  before  the  adultery 
was  committed,  is  deemed  to  be  relevant,  as  showing  the  terms  on  which 
they  lived  and  the  damage  which  A  sustained.' 

(/)  The  question  is,  whether  A's  death  was  caused  by  poison. 

Statements  made  by  A  before  his  illness  as  to  his  state  of  health,  and 
during  his  illness  as  to  his  symptoms,  are  deemed  to  be  relevant  facts. ^ 

(/«)  The  question  is,  what  was  the  state  of  A's  health  at  the  time  when 
an  insurance  on  her  life  was  effected  by  B. 

Statements  made  by  A  as  to  the  state  of  her  health  at  or  near  the  time 
in  question  are  deemed  to  be  relevant  facts.  ^ 

{?/)  The  question  is,  whether  A,  the  captain  of  a  ship,  knew  that  a  port 
was  blockaded. 


'  Trelawney  v.  Coleman,  I  B.  &  A.  90.  [Gr.  Ev.  i.  ^  102  ;  Palmer  v. 
Crook,  7  Gray,  418  ;  Perry  v.  Lovejoy,  49  Mich.  529  ;  Harter  v.  Crill,  33 
Barb.  283  ;  Preston  v.  Bowers,  13  O.  St.  i  ;  see  Dance  v.  McBride,  43  la. 
624;    White  V.  Ross,  47  Mich.  172.] 

^  R.  V.  Palmer.  See  my  '  Gen.  View  of  Grim.  Law,'  p.  -^(tT,'  377  (evi- 
dence of  Dr.  Savage  and  Mr.  Stephens).  [Gr.  Ev.  i.  ^  102.  It  is  a 
general  rule  that  expressions  of  present  bodily  pain  or  suffering  or  symp- 
toms of  disease  are  admissible  as  part  of  the  res  gesta ;  but  not  state- 
ments as  to  past  sufferings.  Caldwell  v.  Murphy,  11  N.  Y.  416  ;  Matteson 
V.  N.  V.  C.  R.  Co. ,  35  N.  Y.  487  ;  Comm.  v.  Fenno,  134  Mass.  217  ;  Ash- 
land v.  Marlborough,  99  id.  47  ;  Wilson  v.  Granby,  47  Ct.  59  ;  Lichten- 
wallner  v.  Laubach,  105  Pa.  St.  366 ;  State  v.  Gedicke,  43  N.  J.  L.  86. 
Such  statements  are  provable  whether  made  to  physicians  or  other  per- 
sons ;  but  some  decisions  allow  wider  scope  to  the  testimony  of  physicians. 
Roosa  v.  Boston  Loan  Co.,  132  Mass.  439.  Declarations  of  this  kind  have 
been  excluded  when  made  post  litefn  motatn.  Grand  Rapids,  etc.  Co.  v. 
Huntley,  38  Mich.  537. 

The  witness  cannot  be  asked  what  the  outcries  of  the  injured  person  in- 
dicated, as  this  is  a  question  for  the  jury.  Mcssner  v.  People,  45  N.  Y.  i  ; 
see  Art.  3,  note.] 

3  Aveson  v.  Lord  Kinnaird,  6  Ea.  188.  [See  Swift  v.  Life  Ins.  Co.,  63 
N.  Y.  186  ;  Edington  v.  Life  Ins.  Co.,  67  N.  Y.  185  ;  Dilleber  v.  Life  Ln. 
Co.,  69  N.  Y.  256.  By  these  New  York  cases  the  statements  of  the 
assured,  if  made  at  a  time  prior  to,  and  not  remote  from  the  application, 
are  deemed  relevant  to  show  his  knoiuledge  of  his  physical  condition.  See 
also  Barber  v.  Merriam,  11  Allen,  322  ;  Fay  v.  Harlan,  128  Mass.  244,  and 
cases  cited  under  last  Illustration.] 


Chap.  III.]        THE  LAW  OF  EVIDENCE.  33 

The  fact  that  the  blockade  was  notified  in  the  Gazette  is  deemed  to  be 
relevant. 

{0)  [The  question  is,  whether  a  testator,  in  making  his  will,  was  con- 
trolled by  undue  influence. 

Statements  made  by  him  on  prior  occasions  as  to  his  testamentary  in- 
tentions in  the  disposition  of  his  property  are  deemed  to  be  relevant,  as 
showing  his  cherished  purposes  and  state  of  mind  when  the  will  was  made; 
if  such  statements  are  consistent  with  the  provisions  of  the  will,  they 
serve  to  rebut  charges  of  undue  influence,  otherwise  to  confirm  them. 
But  statements  of  the  testator  to  show  the  fact  of  undue  influence  are 
deemed  not  to  be  relevant.]- 

Article   12.* 

FACTS    SHOWING   SYSTEM. 

When  there  is  a  question  whether  an  act  was  accidental  or 
intentional,  the  fact  that  such  act  formed  part  of  a  series  of 
similar  occurrences,  in  each  of  which  the  person  doing  the  act 
was  concerned,  is  deemed  to  be  relevant.^ 


•  See  Note  VI. 

>  Harrat  v.   Wise,  9  B.  &  C.  712. 

"  \^Neel  V.  Potter,  40  Pa.  St.  483  ;  Grijith  v.  Diffenderffer,  50  Md.  466  ; 
Marx  V.  McGlynn,  88  N.  Y.  357  ;  Robinson  v.  Adams,  62  Me.  369  ;  May 
V.  Bradlee,  127  Mass.  414  ;  Dye  v.  Youn^^,  55  la.  433.  So  subsequent 
statements  or  acts  may  be  shown  which  indicate  the  state  of  mind  when 
the  will  was  made.  Shailer  v.  Bumstcad,  99  Mass.  112  ;  lVater?nan  v.  Whit- 
ney, II  N.  Y.  157.  And  in  general,  evidence  of  the  testator's  acts  or 
declarations  may  be  given,  which  show  his  mental  peculiarities,  settled 
convictions,  deeply  rooted  feelings  or  purposes,  or  any  enduring  state  of 
mind,  as  they  existed  at  the  making  of  the  will.  Shailer  v.  Bumstead, 
supra.  So  as  to  making  a  deed,  {Howe  v.  Howe,  99  Mass.  88),  or  a  lease, 
(Shertnan  v.  Wilder,  106  Mass.  537),  or  a  gift  caitsa  mortis.  Whitwcll  v. 
Winslow,  132  Mass.  307;  see  Converse  v.   Wales,  4  Allen,  512.] 

3  \State  V.  Lapage,  57  N.  H.  245,  294  ;  People  v.  Shiilman,  80  N.  Y. 
373  ;  Comfn.  v.  Bradford,  126  Mass.  42  ;  Goer  sen  v.  Comm.,  99  Pa.  St.  388; 
Hope  V.  People,  83  N.  Y.  418  ;  see  Co7ntn.  v.  Choate,  105  Mass.  451  ;  Swan 
v.  Comm.,  104  Pa.  St.  218  ;  Dayton  v.  Monroe,  47  Mich.  193  ;  and  p.  24, 
ante,  notes  I  and  2. 

So  a  party's  system  or  course  of  business  may  be  proved  to  show 
whether  he  has  exercised  due  diligence  on  a  particular  occasion  [Holly  v. 
Boston   Gas   Co.,  8  Gray,  123;  Fuller  v.  Navgatuck  K.  Co.,  21  Ct.  557)  ; 


34  A  DIGEST  OF  [Part  I. 


Illustrations. 

{a)  A  is  accused  of  setting  fire  to  his  house  in  order  to  obtain  money 
for  which  it  is  insured. 

The  facts  that  A  had  previously  lived  in  two  other  houses  succes- 
sively, each  of  which  he  insured,  in  each  of  which  a  fire  occurred,  and 


and  the  usual  practice  of  others  in  the  same  business  or  employment 
under  like  circumstances  may  be  shown,  to  indicate  whether  ordinary 
care  has  been  used  in  a  special  instance.  Maynard  v.  Buck,  loo  Mass. 
40 ;  Cass  V.  B.  &■  L.  K.  Co.,  14  Allen,  448  ;  K'olstl  v.  M.  &=  St.  L.  R.  Co., 
32  Minn.  133  ;  Cook  v.  Champlaiii,  etc.  Co.,  i  Den.  91 ;  but  see  G.  T.  R. 
Co.  V.  Richardson,  91  U.  S.  454;  Chicago.^  etc.,  R.  Co.  v.  Clark,  108  111.  113. 
With  the  cases  under  this  article  may  be  compared  those  in  which  a 
system  of  conduct  or  action,  as  shown  by  a  series  of  similar  acts,  is  proved, 
in  order  to  establish  the  habit  of  a  person  or  animal,  the  character  of  a 
house,  etc.  See  Harwood  v.  People,  26  N.  Y.  190  ;  Baiilec  v.  N.  Y.  etc. 
R.  Co. ,  59  N.  Y.  356.  Thus  the  vicious  habit  of  a  horse  for  shying,  balking, 
etc. ,  may  be  shown  by  proving  cases  of  like  misbehavior,  both  before  and 
after  the  act  in  question.  Maggi  v.  Cutis,  123  Mass.  535  ;  Chamberlain 
V.  Enfield,  43  N.  H.  356  ;  cf  Whitney  v.  Leominster,  136  Mass.  25.  And  it 
is  suggested  that  evidence  of  repeated  acts  of  drunkenness  may,  in  the 
discretion  of  the  Court,  be  admitted,  to  prove  habitual  drunkenness. 
Comm.  v.  Ryan,  134  Mass.  223.  In  New  Hampshire,  evidence  of  prior 
acts  of  negligence  of  the  same  kind  by  a  person  is  received,  as  tending 
to  show  his  negligence  on  a  particular  occasion  {State  v.  Railroad  Co.,  52 
N.  H.  528,  but  the  doctrine  is  not  there  extended  to  proof  of  a  crime  or 
other  act  involving  wrongful  intent  by  other  like  crimes  or  acts,  id.  550, 
State  V.  Lapage,  supra) ;  but  in  most  States  this  doctrine  is  generally 
denied.  (See  Art.  10,  Illustrations  (/")  and  {k)\  Robinson  v.  F.  &>  W.  R. 
Co.,  7  Gray,  92.)  So  in  that  State,  on  the  question  at  what  speed  an 
engineer  drove  a  railway  train  at  a  certain  time  and  place,  evidence  of 
the  speed  at  which  he  drove  the  same  train  at  the  same  place  on  other 
days  may  be  admitted.  State  v.  B.  &=  M.  R.  Co.,  58  N.  H.  410;  S.  P. 
Hallv.  Brown,  id.  93.  But  it  is  elsewhere  held  t  at  to  prove  care  on  a 
particular  occasion,  the  party's  habit  of  being  careful  cannot  be  shown 
{McDonalds.  Savoy,  no  Mass.  49  ;  but  see  Dorman  v.  Kane,  5  Allen,  38  ; 
Chicago,  etc.  R.  Co.  \.  Clark,  108  111.  113);  nor  can  the  fact  of  gambling  on 
a  certain  occasion,  when  intoxicated,  be  proved  by  showing  a  habit  so  to 
do  {Thompson  v.  Bowie,  4  Wall.  463  ;  cf  McMahon  v.  Harrison,  6  N.  Y. 
443),  nor  the  taking  of  usury  on  one  occasion  by  showing  prior  acts  of 
taking  usury,  (Ross  v.  Ackerman,  46  N.  Y.  210),  nor  a  habit  of  lying  by  lies 
told  on  other  occasions.      Comm.  v.  h'ennon^  130  Mass.  39.] 


Chap.  111.]        THE  LAW  OP:  EVIDENCE. 


that  after  each  of  those  fires  A  received  payment  from  a  different  insur- 
ance office,  are  deemed  to  be  relevant,  as  tending  to  show  that  the  fires 
were  not  accidental.' 

[J>)  A  is  employed  to  pay  the  wages  of  B's  laborers,  and  it  is  A's  duty 
to  make  entries  in  a  book  showing  the  amounts  paid  by  him.  He  makes 
an  entry  showing  that  on  a  particular  occasion  he  paid  more  than  he 
really  did  pay. 

The  question  is,  whether  this  false  entry  was  accidental  or  intentional. 

The  fact  that  for  a  period  of  two  years  A  made  other  similar  false  en- 
tries in  the  same  book,  the  false  entry  being  in  each  case  in  favor  of  A,  is 
deemed  to  be  relevant.'-' 

(<-)  The  question  is,  whether  the  administration  of  poison  to  A,  by  Z, 
his  wife,  in  September,  1848,  was  accidental  or  intentional. 

The  facts  that  B,  C,  and  D  (A's  three  sons),  had  the  same  poison  ad- 
ministered to  them  in  December,  1848,  March,  1849,  and  April,  1849,  and 
that  the  meals  of  all  four  were  prepared  by  Z,  are  deemed  to  be  relevant, 
though  Z  was  indicted  separately  for  murdering  A,  B,  and  C,  and  at- 
tempting to  murder  D.^ 

((/)  A  promises  to  lend  money  to  B  on  the  security  of  a  policy  of  insur- 
ance which  B  agrees  to  effect  in  an  insurance  company  of  his  choosing. 
B  pays  the  first  premium  to  the  company,  but  A  refuses  to  lend  the 
money  except  upon  terms  which  he  intends  B  to  reject,  and  which  B  re- 
jects accordingly. 

The  fact  that  A  and  the  insurance  company  have  been  engaged  in 
similar  transactions  is  deemed  to  be  relevant  to  the  question  whether  tlie 
receipt  of  the  money  by  the  company  was  fraudulent.* 

Article   13.* 

existence  of  course  of  business,  when  deemed  to  be 

relevant. 

When    there    is    a   question  whether   a   particular   act  was 

done,  the  existence  of  any  course  of  office  or  business  accord- 


*  See  Note  VIL 

^  R.  v.  Gray^  4  F.  &  F.  1102. 

'^  R.  v.  Richardson,  2  F.  &  F.  343  ;  [see  Funk  v.  Ely,  45  Pa.  St.  444  ;  for 
a  case  of  forgery,  see  Rankin  v.  Blackwell,  2  Johns.  Cas.  198.] 

3  ^.  v.  Geering,  18  L.  J.  M.  C.  215  ;  cf.  R.  v.  Garner,  3  F.  &  F.  681  ; 
[see  Goersen  v.  Comm.,  99  Pa.  St.  388  ;  Weynian  v.  People,  4  Hun,  511, 
518,  62  N.  Y.  623.] 

■■  Blake  V.  Albion  Life  Assurance  Society,  L.  R.  4  C.  P.  D.  94. 


36  A  DIGEST  OF  [Part  I. 

ing  to  which  it  naturally  would  have  been  done,  is  a  relevant 
fact.' 

When  there  is  a  question  whether  a  particular  person  held 
a  particular  public  office,  the  fact  that  he  acted  in  that  office  is 
deemed  to  be  relevant.'' 

When  the  question  is  whether  one  person  acted  as  agent  for 
another  on  a  particular  occasion,  the  fact  that  he  so  acted  on 
other  occasions  is  deemed  to  be  relevant.' 

Illustrations. 

(a)  The  question  is,  whether  a  letter  was  sent  on  a  given  day. 
The  post-mark  upon  it  is  deemed  to  be  a  relevant  fact.'' 

[b)  The  question  is,  whether  a  particular  letter  was  despatched. 

The  facts  that  all  letters  put  in  a  certain  place  were,  in  the  common 
course  of  business,  carried  to  the  post,  and  that  that  particular  letter  was 
put  in  that  place,  are  deemed  to  be  relevant. ^ 

(r)  The  question  is,  whether  a  particular  letter  reached  A. 

The  facts  that  it  was  posted  in  due  course  properly  addressed,  and 
was  not  returned  through  the  Dead  Letter  Office,  are  deemed  to  be 
relevant.' 


»  [Gr.  Ev.  i.  §§  38,  40  ;  Mandeville  v.  Reynolds,  68  N.  Y.  528  ;  People 
V.  Oyer  and  Ter?ni?ier  Court ^  83  N.  Y.  436  ;  Pier  son  v.  Atlantic  Bk.  77  N. 
Y.  304  ;  Bk.  of  U.  S.  v.  Dandrid^e,  12  Wheat.  64  ;  Comm.  v.  Kimball, 
108  Mass.  473  ;  Hall  v.  Brown,  58  N.  H.  93.] 

2  I  Ph.  Ev.  449 ;  R.  N.  P.  46  ;  T.  E.  s.  139 ;  [see  Art.  90,  post,  last  para- 
graph.] 

^[Olcottv.  Tioga  R.  Co.,  27  N.  Y.  546 ;  Hammond  v.  Varian,  54  N.  Y. 
398  ;  Kent  v.  Tyson,  20  N.  H.  121  ;  Thurber  v.  Anderson,  88  111.  167  ; 
Kent's  Comm.  ii.  615.] 

'^R.  V.  Canning,  19  S.  T.  370.  [C/.  S.  v.  Williatns,  3  F.  R.  484;  U. 
S.  v.  Noelke,  17  Blatch.  554.  But  there  is  no  presumption  that  the 
date  of  the  postmark  was  the  day  of  depositing  the  letter.  Shelburtie 
Falls  Bk.  v.  Townsley,  102  Mass.  177;  see  Price  v.  McGoldrick,  2  Abb. 
N.  C.  69.] 

6  Hetherington  v.  Kemp,  4Camp.  193  ;  and  see  Skilbeck  v.  Garbett,  7  Q.  B. 
846,  and  Trotter  v.  Maclea?i,  L.  R.  13  Ch.  Div.  574  ;  [see  Howard  v. 
Daly,  61  N.  Y.  362  :  Hall  v.  Brorvn,  58  N.  H.  93,  97.] 

«  Warren  v.  Warren,  1  C.  M.  &  R.  250  ;  Woodcock  v.  Houldsworth,  16 
M.  &  W.  124.     Many  cases  on  this  subject  are  collected  in  Roscoe's  Nisi 


Chap.  III.j       THE  LAW  OF  EVIDENCE.  2,7 

{(i)  The  facts  stated  in  illustration  {d)  to  the  last  article  are  deemed  to 
be  relevant  to  the  question  whether  A  was  agent  to  the  company. i 


Prius,  pp.  734-5.  [^Hcdden  v.  Roberts,  134  Mass.  38  ;  Rosenthal  v.  Walker, 
III  U.  S.  185  ;  cf.  Ellison  v.  Liudsley,  33  N.  J.  Eq.  258.  This  is  only 
prima  facie  evidence  that  the  letter  was  received,  not  a  conclusive  pre- 
sumption of  law.  Huntley  v.  IVhittier,  105  Mass.  391  ;  Susquehanna 
Ins.  Co.  V.  Toy  Co.,  97  Pa.  St.  424  ;  Austin  v.  Holland,  69  N.  Y.  571. 
The  same  rule  applies  to  telegrams.  U.  S.  v.  Babcock,  3  Dill.  571.] 
'  Blake  v.  Albion  Life  Assurance  Society.,  L.  R.  4  C.  P.  D.  94, 


38  A  DIGEST  OF  [Part.  1. 


CHAPTER   IV. 

HEARS  A  V  IRRELEVANT  EXCEPT  IN  CERTAIN  CASES. 

Article  14.* 

hearsay  and  the  contents  of  documents  irrelevant, 

{a)  The  fact  that  a  statement  was  made  by  a  person  not  called 
as  a  witness,  and 

(b)  the  fact  that  a  statement  is  contained  or  recorded  in  any 
book,  document,  or  record  whatever,  proof  of  which  is  not  ad- 
missible on  other  grounds, 

are  respectively  deemed  to  be  irrelevant  to  the  truth  of  the 
matter  stated,  except  (as  regards  (a)  )  in  the  cases  contained  in 
the  first  section  of  this  chapter  ;  ' 

and  except  (as  regards  {U))  in  the  cases  contained  in  the 
second  section  of  this  chapter. 

Illustrations, 
{a)  A  declaration  by  a  deceased  attesting  witness  to  a  deed  that  he  had 
forged  it,  is  deemed  to  be  irrelevant  to  the  question  of  its  validity.^ 

*  See  Note  VOL 

'  It  is  important  to  observe  the  distinction  between  the  principles  which 
regulate  the  admissibility  of  the  statements  contained  in  a  document  and 
those  which  regulate  the  manner  in  which  they  must  be  proved.  On  this 
subject  see  the  whole  of  Part  II.  [As  to  the  general  rule  that  hearsay 
evidence  is  excluded,  see  Stephens  v.  Vrooman,  i6  N.  Y.  381  ;  People  v. 
Beach,  87  N.  Y.  508  ;  Comm.  v.  Picker,  131  Mass.  581  ;  Comin.  v.  Fetch, 
132  id.  22.  ] 

2  Stobart  v.  Dryden,  I  M.  &  W.  615.  fSome  American  decisions  deny 
the  doctrine  of  this  case  (Boylan  v.  Meeker,  4  Dutch.  274,  295  ;  Otterson 
V.  Hofford,  36  N.  J.  L.  129  ;  Neely  v.  Neely,  17  Pa.  St.  227  ;  of.  Losee  v. 
Losee,  2  Hill,  609);  but  others  follow  it  {Baxter  v.  Abbott,  7  Gray,  71; 
Boardman  v.  Woodmtn,  47  N.  H.  120;  see  also  Gr.  Ev.  i.  $  126).  That 
the  declarations  of  other  deceased  witnesses  may  be  rejected  as  hearsay, 
see  Gray  v.  Goodwin,  7  Johns.  95  ;  Spatz  v.  Lyon,  55  Barb.  476.] 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  39 


(3)  The  question  is,  whether  A  was  born  at  a  certain  time  and  place. 
The  fact  that  a  public  body  for  a  public  purpose  stated  that  he  was 
born  at  that  time  and  place  is  deemed  to  be  irrelevant,  the  circumstances 
not  being  such  as  to  bring  the  case  within  the  provisions  of  Article  34.' 


SECTION    I. 
HEARSAY,  WHEN  RELEVANT. 

Article  15.* 

admissions  defined. 

An  admission  is  a  statement,  oral  or  written,  suggesting  any 
inference  as  to  any  fact  in  issue  or  relevant  or  deemed  to  be 
relevant  to  any  such  fact,  made  by  or  on  behalf  of  any  party 
to  any  proceeding.  Every  admission  is  (subject  to  the  rules 
hereinafter  stated)  deemed  to  be  a  relevant  fact  as  against  the 
person  by  or  on  whose  behalf  it  is  made,  but  not  in  his  favor 
unless  it  is,  or  is  deemed  to  be,  relevant  for  some  other  reason.^ 


*  See  Note  IX. 

'  Sturla  V.  Freccia,  L.  R.  5  App.  Cas.  623. 

2  [It  is  an  important  rule  that  if  part  of  a  statement  made  by  a  party  be 
relevant  against  him  as  an  admission,  other  parts  of  the  same  statement 
which  in  any  way  qualify  or  explain  such  admission  are  also  relevant, 
though  they  are  in  such  party's  favor.  Gr.  Ev.  i.  ^  201  ;  Grattan  v.  Ins. 
Co.,  92  N.  Y.  274;  Gilderslcevc  v.  Landoti,  73  N.  Y.  609  ;  Insurance  Co.  v. 
Newton,  22  Wall.  32  ;  Vanneter  v.  Crosstnan,  42  Mich.  465  ;  Farley  v.  Rod- 
ocanachi,  100  Mass.  427.  But  other  portions  of  the  same  conversation  or 
statement,  which  do  not  explain  or  affect  the  part  which  is  unfavorable 
to  the  declarant,  are  not  admissible  {Plainer  v.  Plainer,  78  N.  Y.  90),  nor 
are  independent  declarations  which  are  made  by  him  and  are  in  his  own 
favor.  Doivns  v.  N.  Y.  C.  R.  Co.,  47  N.  Y.  83.  But  a  party  giving  evi- 
dence of  the  opposing  party's  admissions  may  also  disprove  those  parts 
of  the  same  statement  which  are  in  the  other  party's  favor,  but  are  never- 
theless receivable  in  evidence.  Moit  v.  Consumers'  Ice  Co.,  73  N.  Y. 
543- 

Oral  admissions  may  be  proved  by  any  witness  who  heard  them  ;  if  he 
cannot  remember  the  exact  words,  he  may  testify  to  the  substance  of  the 
admission.     Gr.  Ev.  i.  $  191 ;  Kitiredge  v.  Russell,  114  Mass.  67, 


40  A  DIGEST  OF  [Part  I. 

Article  i6.* 
who  may  make  admissions  on  behalf  of  others, 

AND    WHEN. 

Admissions  may  be  made  on  behalf  of  the  real  party  to  any 
proceeding — 


*See  Note  X. 

Admissions  may  also  be  implied  from  acts  and  conduct.  Gr.  Ev.  i. 
^§  195-199;  Hayes  v.  Kelley,  116  Mass.  300;  Green^eld  Bk.  v.  Crafts,  2 
Allen,  269 ;  Wesner  v.  Stem,  97  Pa.  St.  322  ;  Lefever  v.  Johnson,  79  Ind. 
554 ;  Foster  v.  Persch,  68  N.  Y.  400.  Thus,  if  an  account  rendered  be 
not  objected  to  within  a  reasonable  time,  it  is  deemed  to  be  admitted  by 
the  party  charged  to  be  priina  facie  correct.  Wiggins  v.  Burkham,  10 
Wall.  129 ;  Guernsey  v.  Rexford,  63  N.  Y.  631.  The  act  of  a  landlord 
in  making  repairs  after  an  injury  is  an  admission  that  it  is  his  duty,  rather 
than  that  of  the  tenant.  Readman  v.  Conway,  126  Mass.  374.  So  if  a 
partner  has  access  to  the  books  of  the  firm,  the  book-entries  therein  are 
admissible  against  him.  Fairchildv.  Fairchild,  64  N.  Y.  471  ;  Topliff  v. 
Jackson,  12  Gray,  565.  But  failure  to  answer  a  letter  is  not  generally 
deemed  an  admission  of  the  truth  of  its  contents.  Learned  v.  Tillotson, 
97  N.  Y.  I.  As  to  other  admissions  by  acquiescence,  see  Art.  8,  ante, 
last  paragraph. 

Admissions  made  incidentally  or  indirectly  are  competent  evidence  as 
well  as  those  made  directly.  Gr.  Ev.  i.  ^  194  ;  Harrington  v.  Gable,  81 
Pa.  St.  406.  Admissions  may  also  be  made  in  pleading,  or  in  evidence 
given  in  a  former  proceeding.  Cook  v.  Barr,  44  N.  Y.  156  ;  Bliss  v. 
Nichols,  12  Allen,  443;  Comm.  v.  Reynolds,  122  Mass.  454;  Wheat  v. 
Summers,  13  Bradw.  444  ;  Whiton  v.  Snyder,  88  N.  Y.  299  ;  see  this  rule 
limited  in  Dennie  v.  Williains,  135  Mass.  28  ;  Vogel  v.  Osborite,  32  Minn. 
167.  Admissions  made  simply  for  one  trial  cannot  be  used  in  another 
[McKinney  v.  Salem,  jj  Ind.  213),  but  the  rule  is  otherwise,  if  they  are 
made  without  such  limitation.  Holley  v.  Yoimg,  68  Me.  215  ;  Owen  v. 
Cawley,  36  N.  Y.  600  ;  Perry  v.  Simpson  etc.  Co.,  40  Ct.  313 

Oral  admissions,  though  competent  as  evidence,  must  be  received,  it 
is  said,  with  great  caution.  Gr.  Ev.  i.  §§  199,  200  ;  Jones  v.  K'nanss,  31 
N.  J.  Eq.  609.  But  admissions  are  conclusive  when  they  amount  to 
estoppels  (Gr.  Ev.  i.  i^S^  204-208)  ;  and  admissions  made  in  pleading  and 
not  obviated  by  amendment,  are  conclusive  in  the  same  case.  Cook  v. 
Barr,  supra.] 


Chap.  IV.J        THE  LAW  OF  EVIDENCE.  41 

By  any  nominal  party  to  that  proceeding  ;' 

By  any  person  who,  though  not  a  party  to  the  proceeding, 
has  a  substantial  interest  in  the  event  ;* 

By  any  one  who  is  privy  in  law,'  in  blood/  or  in  estate  '  to 
any  party  to  the  proceeding  on  behalf  of  that  party. 


'  [Mr.  Stephen  illustrates  this  rule  by  saying  that  the  admissions  of  an 
assignor  of  a  chose  in  action  who  is  the  nominal  plaintiff  in  an  action 
brought  for  the  benefit  of  his  assignee,  are  admissible  against  the  latter. 
But  in  New  York  and  many  other  States  of  this  country,  the  assignee 
sues  in  his  own  name,  and  there  is,  therefore,  no  ground  for  receiving 
the  admissions  of  the  assignor  made  after  the  assignment ;  they  are 
therefore  excluded.  Van  Gelder  v.  Van  Gelder,  8i  N.  Y.  625.  And  evi- 
dence of  such  admissions  has  been  generally  rejected  in  this  country, 
even  when  the  assignee  sued  in  the  assignor's  name.  Wing  v.  Bishop,  3 
Allen,  456  ;  Butler  v.  Millett,  47  Me.  492  ;  Sargcant  v.  Sargeant,  18  Vt. 
271 ;  Dazey  v.  Mills,  5  Gilm.  (Ill)  67  ;  Frear  v.  Evertson,  20  Johns.  142. 
But  the  admissions  of  the  assignee,  after  a  valid  assignment,  are  rele- 
vant against  him.] 

*  [Gr.  Ev.  i.  §  180  ;  Pickett  v.  Swift,  41  Me.  65  ;  Bigelow  v.  Foss,  59 
Me.  162  ;  Benjamin  v.  Smith,  4  Wend.  332,  335,  12  Wend.  404,  407  ;  see 
Taylor  v.  G.  T.  J?.  Co.,  48  N.  H.  304.  But  the  declarations  of  a  person 
who  is  not  a  party  to  the  record  nor  a  witness,  are  not  received  to  show 
that  he  is  the  real  party  in  interest.     Fya?t  v.  Merriam.  4  Allen,  77. 

Under  this  head  is  sometimes  placed  the  rule  that  in  an  action  against 
a  sheriff  for  the  misconduct  of  his  deputy  the  admissions  of  the  deputy 
are  receivable,  on  the  ground  that  he  is  the  real  party  in  interest.  Or. 
Ev.  $  180,  note.  But  in  some  States  it  is  held  that  such  declarations  are 
only  receivable  when  they  accompanied  the  deputy's  official  acts,  and 
therefore  formed  part  of  the  res  gcstce.  Barker  v.  Bininger,  14  N.  Y. 
270  ;  Stewart  v.    Wells,  6  Barb.  79.] 

2  [Thus  the  admissions  of  an  intestate  are  receivable  against  his  ad- 
ministrator {BroT.vn  v.  Mailler,  12  N.  Y.  118;  Felloivsw.  Smith,  130  Mass. 
378  ;  Slade  v.  Leonard,  75  Ind.  171);  and  of  testator  against  executor  (t'/^/A/r 
v.  Jordati,  106  Mass.  321).  So  in  an  action  by  a  widow  for  dower,  admis- 
sions made  by  her  husband  while  living  are  deemed  to  be  relevant  against 
her.      Van  Diiyne  v.   Thayre,  14  Wend.  233.] 

••  [Admissions  made  by  an  ancestor  are  receivable  against  his  heirs. 
Spaulding  v.  Hallenbeck,  35  N.  Y.  204  ;  Enders  v.  Van  Steenbergh,  2  Abb. 
Dec.  31.] 

*  [Admissions  by  a  grantor  of  land  are  relevant  against  his  grantee  ;  of 


42  A  DIGEST  OF  [Part  I. 

A  statement  made  by  a  party  to  a  proceeding  may  be  an 
admission  whenever  it  is  made,'  unless  it  is  made  by  a  person 
suing  or  sued  in  a  representative  character  only,  in  which  case 
(it  seems)  it  must  be  made  whilst  the  person  making  it  sustains 
that  character." 


a  landlord  against  his  tenant ;  of  devisor  against  devisee  ;  of  any  owner 
(if  land  against  those  who  subsequently  derive  title  from  or  through  him. 
CJtadwlck  V.  Fon7ier,  69  N.  Y,  404;  Simpson  v.  Dix,  131  Mass.  179;  Pick- 
ering \.  Reynolds,  119  Mass.  in.  As  to  personal  property,  see  note  i, 
next  page. 

Not  only  those  declarations  by  an  owner  of  land,  or  by  one  claiming 
title,  which  are  in  disparagement  of  his  title,  are  admissible  against  the 
declarant  or  persons  in  privity  with  him  (see  Bozveri  v.  Chase,  98  U.  S. 
254),  but  also  those  statements  made  by  him  while  in  possession,  which 
show  the  character  of  his  possession  and  by  what  title  he  claims  (Pitts  v. 
Jl'iMer,  1  N.  Y.  525;  Moore  v.  Hamilton,  44  N.  Y.  666  ;  Hale  v.  Rich,  48 
Vt.  217 ;  Hale  v.  Silloway,  I  Allen,  21),  as  e.g.  to  show  that  he  held  under 
adverse  claim  of  title  (^Morss  v.  Salisbury,  48  N.  Y.  636;  Snsi/.,  etc.,  R. 
Co.  V.  Quick,  68  Pa.  St.  189),  or  as  the  tenant  of  a  particular  person 
(Gi6ney  v.  Marchay,  34  N.  Y.  301),  or,  as  some  cases  hold,  to  show  the 
extent  of  occupation  or  boundary.  Abeel  v.  Vaii  Gelder,  36  N.  Y.  513  ; 
Sheaffer  v.  Eakrnan,  56  Pa.  St.  144  ;  see  Chapman  v.  Edmands,  3  Allen, 
512.  Such  evidence  comes  properly  under  the  doctrine  of  res  gestce. 
(Gr.  Ev.  i.  $  109  ;  see  ante.  Art.  3,  note.)  But  declarations  of  an  owner  in 
possession  will  not  be  received  in  place  of  record  evidence  nor  to  destroy 
a  record  title.  Gibncy  v.  Marchay.,  supra,-  Dodge  v.  Trust  Co.,  93  U.  S. 
379 ;  Hancock  Ins.  Co.  v.  Moore,  34  Mich.  41  ;  but  see  Loomis  v.  Wad- 
ham,  8  Gray,  556.] 

'  \Cook  v.  Barr,  44  N.  Y.  156;  Williams  v.  Sergeant,  46  N.  Y.  481  ; 
Wig^in  V.  P.  6^  A.  R.  Co.,  120  Mass.  201  ;  Hatch  v.  Brown,  63  Me.  410; 
Duncan  v.  Lawrence,  24  Pa.  St.  154  ;  cf.  Shailer  v.  Bumstead,  99  Mass. 
112,  127;  so  if  one  be  substituted  as  a  party  after  suit  brought,  his  ad- 
missions are  receivable.      Wads70orth  v.    Williams,  100  Mass.  126.] 

2  [Gr.  Ev.  i.  $  179  ;  Lamar  v.  Micou,  112  U.  S.  452.  Thus  the  decla- 
rations of  an  executor  or  administrator  are  not  competent  as  admissions, 
unless  made  after  his  appointment  and  while  he  was  acting  in  that  capac- 
ity and  representing  the  estate.  Church  v.  Howard,  79  N.  Y.  415  ; 
Brooks  V.  Goss,  61  Me.  307  ;  Dent  v.  Dent,  3  Gill,  482  ;  see  Heywoodv. 
Heywood,  10  Allen,  105.  But  if  he  sues  or  is  sued  in  an  individual  capac- 
ity, his  admissions  made  at  other  times  are  receivable.     See  Whiton  v. 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  43 

A  statement  made  by  a  person  interested  in  a  proceeding,  or 
by  a  privy  to  any  party  thereto,  is  not  an  admission,  unless  it 
is  made  during  the  continuance  of  the  interest  which  entitles 
him  to  make  it.' 


Snyder,  88  N.  Y.  299.  And  his  admissions  made  as  party  in  one  suit  are 
receivable  against  him  as  party  in  another.  Phillipps  v.  Middlesex,  127 
Mass.  262.] 

'  [Thus  declarations  by  a  grantor  of  land  after  parting  with  his  interest 
are  not  receivable  as  admissions  against  the  grantee  (  Vrooman  v.  King, 
36  N.  Y.  477  ;  Brower  v.  Cullender,  105  III.  88  ;  Winchester  v.  Charter, 
97  Mass.  140)  ;  nor  those  of  an  assignor  of  chattels  or  choses  in  action 
against  the  assignee,  when  they  are  made  after  the  assignment  and  trans- 
fer of  possession.  Coyne  v.  Weaver,  84  N.  Y.  386  ;  Durnham  v.  Brcnnan, 
74  N.  Y.  597  ;  Roberts  v.  Medbery,  132  Mass.  100  ;  Mc Lanathan  v.  Patten, 
39  Me.  142  ;  Benson  v.  l.imdy,  52  la.  265.  But  if  a  transferor  of  land  or 
chattels  remains  in  possession,  his  declarations  characterizing  that  pos- 
session are  often  competent.  Pier  v.  Duff,  63  Pa.  St.  59 ;  Newlin  v. 
Lyon,  49  N.  Y.  661  ;  Roberts  v.  Medbery,  supra  ;  but  see  Vrooman  v.  King, 
supra.  In  New  York  the  declarations  of  an  assignor  of  personal  prop- 
erty, made  while  he  remains  in  continuous  possession  of  it  after  the  as- 
signment, are  receivable  to  show  fraud  as  to  creditors.  Adams  v.  David- 
son, 10  N.  Y.  309  ;  but  see  Tilson  v.  Terwilliger,  56  N.  Y.  273  ;  Tabor  v. 
Van  Tassell,  86  N.  Y.  642.  But  the  declarations  of  a  grantor  of  land 
after  the  grant  cannot  be  received  for  the  same  purpose  (Holbrook  v.  Hol- 
brook,  113  Mass.  74),  unless  there  be  a  conspiracy  between  the  parties 
to  defraud  creditors  and  such  declarations  are  made  in  pursuance  of 
the  conspiracy.  Cuylerv.  McCartney,  40  N.  Y.  221  ;  Souder  v.  Schech- 
terly,  91  Pa.  St.  83  ;  this  rule  applies  to  personalty  also. 

The  admissions  of  an  assignor  of  a  chattel  or  chose  in  action,  made 
while  he  had  ownership  and  possession,  are  in  many  States  held  compe- 
tent against  his  assignee  {Sandifer  v.  Hoard,  59  111.  246  ;  Merrick  v.  Park- 
man,  18  Me.  407  ;  Alger  v.  Andreivs,  47  Vt.  238  ;  Magee  v.  Raigiiel,  64 
Pa.  St.  110 ;  Bond\.  Fitzpatrick,  4  Gray,  89  ;  Ratidegger  v.  Ehrhardt,  51 
111.  loi  ;  aliter,  as  to  commercial  paper  negotiated  before  maturity) ;  but 
the  rule  is  sometimes  limited  by  important  qualifications.  Coit  v.  Howe, 
I  Gray,  547.  This  rule  is  like  that  applied  to  real  estate.  (See  a7ite, 
note  5.)  But  in  New  York,  while  the  rule  as  to  realty  is  accepted,  a  dif- 
ferent rule  is  applied  to  personalty,  and  it  is  held  that  the  declarations 
of  the  assignor,  though  made  before  the  assignment,  are  not  admissible 
against  Jin  assignee /^A-  value  or  for  th^  benefit  of  creditors.      Von  S(tcAf 


44  A  DIGEST  OF  [Part  I. 

Illustrations. 

(a)  The  assignee  of  a  bond  sues  the  obligor  in  the  name  of  the 
obligee. 

An  admission  on  the  part  of  the  obligee  that  the  money  due  has  been 
paid  is  deemed  to  be  relevant  on  behalf  of  the  defendant.' 

((5)  An  admission  by  the  assignee  of  the  bond  in  the  last  illustration 
would  also  be  deemed  to  be  relevant  on  behalf  of  the  defendant. 

(ba)  [The  question  is,  whether  a  horse  was  sold  to  the  defendant  by 
the  plaintiff  for  .$500,  or  was  entrusted  to  him  as  a  bailee. 

The  defendant  upon  seeing  an  entry  made  in  the  plaintiff's  book  of 
account  immediately  after  the  transaction,  charging  him  with  $500  as  the 
price  of  the  horse,  admitted  its  accuracy ;  this  admission  is  deemed  to 
be  relevant  against  him.]  "^ 

{bb)  [A  sues  B  to  recover  the  possession  of  land.  A  claims  under  C 
and  B  claims  under  D.  Declarations  made  by  D  while  in  possession  of 
the  land  that  C  was  the  owner  are  admissible  against  B.]^ 

{be)  [The  admissions  of  a  holder  of  a  promissory  note  after  maturity, 
made  while  he  held  it,  are  deemed  to  be  relevant  against  a  subsequent 
holder.]* 

(r)  A  statement  made  by  a  person  before  he  becomes  the  assignee  of 
a  bankrupt  is  not  deemed  to  be  relevant  as  an  admission  by  him  in  a 
proceeding  by  him  as  such  assignee.^ 

(d)  Statements  made  by  a  person  as  to  a  bill  of  which  he  had  been  the 
holder  are  deemed  not  to  be  relevant  as  against  the  holder,  if  they  are 
made  after  he  has  negotiated  the  bill.* 


V.  Kretz,  72  N.  Y.  548,  554;  Truax  v.  Slater,  86  N.  Y.  630;  Clews  v. 
Rekr,  90  N.  Y.  633.  The  same  rule  is  adopted  by  the  U.  S.  Supreme 
Court.  Dodge  v.  Trust  Co. ,  93  U.  S.  379.  But  against  other  assignees, 
not  acquiring  title  for  value  (as  an  executor,  etc.),  such  declarations  of  the 
assignor  are  competent.     Von  Sacks  w.  Kretz,  supra. 

As  to  the  rule  that  the  admissions  of  a  person  in  interest  must  be  made 
during  the  continuance  of  his  interest,  see  Taylor  v.  G.  T.  R.  Co.,  48 
N.  H.  304.] 

'  See  Moriartyv.  L.  C.  &>  D.  Co.,  L.  R.  5  Q.  B.  320;  [seepage  41,  ante, 
note  I.] 

2  [  Tanner  v.  Par  shall,  4  Abb.  Dec.  356.] 

'  \SiTnpson  V.  Dix,  131  Mass.  179.] 

^  [ffondv.  Fitzpatrick,  4  Gray,  89  ;  contra.  Clews  v.  Kehr,  90  N.  Y.  633.] 

*  Fenwick  v.  Thornton,  M.  &  M.  51  (by  Lord  Tenterden).  In  Smith 
V.  Morgan,  2  M.  &  R.  257,  Tindal,  C.  J.,  decided  exactly  the  reverse. 

'  pQCOck  V,  Billing,  2  Bing.  269. 


Chap.  IV.]         THE  LAW  OF  EVIDENCE.  45 

Article  17.* 

admissions  by  agents  and  persons  jointly  interested 
with  parties, 

Admissions  may  be  made  by  agents  authorized  to  make 
them  either  expressly  or  by  the  conduct  of  their  principals; 
but  a  statement  made  by  an  agent  is  not  an  admission  merely 
because  if  made  by  the  principal  himself  it  would  have  been 
one.' 

Partners  and  joint  contractors  are  each  other's  agents  for  the 
purpose  of  making  admissions  against  each  other  in  relation  to 
partnership  transactions  or  joint  contracts.' 


*  See  Note  XI. 

'  [The  admissions  of  an  agent,  in  order  to  be  competent  evidence 
against  his  principal,  must  relate  to,  and  be  made  in  connection  with, 
some  act  done  in  the  course  of  his  agency,  so  as  to  form  part  of  the  res 
gest(S.  Anderson  v.  Rome,  etc.  R.  Co.,  54  N.  Y.  334  ;  Alexander  v.  Cauld- 
well,  83  N.  Y.  480;  Monocacy,  etc.  Co.  v.  American,  etc.  Co.,  83  Pa.  St. 
517  ;  Xeuia  Bk.  v.  Stewart,  114  U.  S.  224  ;  Lane  v.  B.  &"  A.  R.  Co.,  112 
Mass.  455.  Or  else  they  must  be  expressly  authorized.  White  v.  Miller, 
71  N.  Y.  118,  136.  But  an  agent's  declarations  are  not  admissible  to 
prove  his  own  authority.  Starin  v.  Genoa,  23  N.  Y.  439;  Whiting  v. 
Lake,  91  Pa.  St.  349. 

A  wife's  declarations  are  competent  against  her  husband  when  she 
makes  them  as  his  agent,  within  this  rule,  but  not  otherwise  ;  and  so  of  a 
husband's  admissions  as  against  his  wife.  The  marital  relation  does  not 
of  itself  establish  the  agency,  but  it  must  be  otherwise  shown  to  exist ; 
it  may  be  express  or  implied.  Gr.  Ev.  i.  %  185  ;  Lay  Grae  v.  Peterson, 
2  Sandf.  338;  Deck  v.  Johnson,  I  Abb.  Dec.  497;  Rose  v.  Chapman,  44 
Mich.  312  ;  Hunt  v.  Strew,  33  Mich.  85  ;  Goodrich  v.  Tracy,  43  Vt.  314  ; 
see  McGregor  v.   Wait,  10  Gray,  72. 

The  admission  of  a  member  of  an  aggregate  corporation,  who  is  not  a 
party  to  the  action,  is  not  competent  evidence  against  the  corporation, 
unless  made  within  this  rule  while  he  was  acting  as  its  authorized  agent. 
Soper  v.  Buffalo,  etc.  R.  Co.,  19  Barb.  310  ;  N.  Y.  Code  Civ.  Pro.  %  839  ; 
Angell  &  Ames  on  Corporations,  %%  309,  657-660.] 

"  [S.  P.  as  to  partners.  Fogerty  v.  Jordan,  2  Rob.  319  ;  Van  Keuren  v. 
Parmalee,  2  N.  Y.  523  ;  Smith  v.  Collins,  115  Mass.  388  ;  Ruckman  v. 


46  A  DIGEST  OF  [Part  I. 

Barristers  and  solicitors  are  the  agents  of  their  clients  for  the 
purpose  of  making  admissions  whilst  engaged  in  the  actual 
management  of  the  cause,  either  in  court  or  in  correspondence 
relating  thereto  ;  but  statements  made  by  a  barrister  or  solicitor 


Decker,  23  N.  J.  Eq.  283.  The  existence  of  the  partnership,  however, 
must  be  first  shown,  and  the  admissions  of  one  alleged  partner  are  not 
competent  against  others  to  prove  them  to  be  partners,  though  they  are 
receivable  against  himself.  Currier  v.  Silloway^  i  Allen,  19  ;  Greenwood 
V.  Sias,  21  Hun,  391  ;  Edwards  v.  Tracy,  62  Pa.  St.  374  ;  Pleasants  v. 
Fant,  22  Wall.  116. 

Different  rules  prevail  in  different  States  as  to  whether  the  admissions 
of  one  partner,  after  a  dissolution  of  the  firm,  shall  be  receivable  against 
the  others.  In  some  States  they  are  admissible  against  the  others,  when 
made  in  regard  to  past  debts  or  transactions  of  the  firm,  or  to  remove  the 
bar  of  the  Statute  of  Limitations  as  to  a  partnership  debt.  Vinal  v.  Bur- 
rill,  16  Pick.  401  ;  Buxton  v.  Edwards,  134  Mass.  567  ;  Merritt  v.  Day,  38 
N.  J.  L.  32  ;  Bissellv.  Adams,  35  Ct.  299.  But  in  New  York  admissions  by 
one  as  to  dealings  of  the  firm  before  dissolution  or  as  to  barred  claims 
are  not  competent  against  the  others  {Baker  v.  Stackpole,  9  Cow.  420 ;  Van 
Kcuren  v.  Partnalee,  supra)  ;  though  if  one  is  authorized  to  act  as  agent 
in  the  business  of  winding  up,  the  declarations  which  he  makes  in  the 
course  of  his  agency  are  competent.  Nichols  v.  White,  85  N.  Y.  531. 
When  a  partner  retires,  the  remaining  members  cannot  bind  him  by  their 
admissions.  Pringle  v.  Leverich,  97  N.  Y.  181.  Some  other  States  have 
adopted  similar  rules.  Searight  v.  Craighead,  I  P.  &  W.  135  ;  Bell  v. 
Alorrison,  I  Pet.  351  ;  see  A^ewmaii  v.  McComas,  43  Md.  70  ;  Parsons  on 
Partnership,  pp.  184-197. 

So  in  some  States  the  admissions  of  one  joint  debtor  or  contractor  are 
received  against  the  others,  and  will  remove  the  bar  of  the  Statute  of 
Limitations  as  against  all,  except  so  far  as  the  statutes  cited  below  (see  p. 
48,  note  I)  modify  this  rule.  Dentiie  v.  Williarns,  135  Mass.  28  ;  Caldwell 
V.  Sigourney,  19  Ct.  37  ;  Bound  v.  Lathrop,  4  Ct.  336  ;  Shcpley  v.  Water- 
house,  22  Me.  497  ;  Black  v.  Lamb,  i  Beas.  108  ;  see  Parker  v.  Butter- 
worth,  46  N.  J.  L.  244.  In  other  States,  a  contrary  or  modified  doctrine 
is  held  (see  Kallenbach  v.  Dickinson,  100  111.  427,  which  enumerates  the 
States  having  the  diverse  rules,  and  cites  many  leading  cases).  Thus  it 
is  held  in  a  number  of  the  States  that  one  cannot  bind  the  others,  so  as 
to  affect  their  defence  that  the  claim  is  barred.  Shoemaker  v.  Benedict, 
II  N.  Y.  176 ;  Bush  V.  Stowell,  71  Pa.  St.  208  ;  Clark  v.  Burn,  86  id.  502 ; 
Hanc(  V.  Hair,  25  0.  St.  349.     In  New  York  it  is  well  settled  that  a  joint 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  47 

on  other  occasions  are  not  admissions  merely  because  they 
would  be  admissions  if  made  by  the  client  himself.' 

The  fact  that  two  persons  have  a  common  interest  in  the 
same  subject  matter  does  not  entitle  them  to  make  admissions 
respecting  it  as  against  each  other.' 


debtor  or  joint  contractor  has  no  authority  to  bind  his  associate,  unless 
he  is  the  agent  or  in  some  other  way  the  representative  of  such  person. 
Wallis  V.  Randall,  8i  N.  Y.  164;  Leiuis  v.  VV'ood^uortk,  2  N.  Y.  512  ;  see 
Rogers  v.  Anderson,  40  Mich.  290.  The  rule  in  any  State  as  to  joint 
debtors  is  much  the  same  as  to  partners  after  dissolution.] 

'  [This  rule  is  generally  applicable  in  this  country  to  attorneys  and 
counsellors.  Gr.  Ev.  L  §  186;  Lewis  v.  Sumner,  13  Met.  269;  Lord  v. 
Bigclow,  124  Mass.  185 ;  Oliver  v.  Bennett,  65  N.  Y.  559 ;  People  v. 
Stephens,  52  N.  Y.  306 ;  Rogers  v.  Greenwood,  14  Minn.  333  ;  Sohns  v. 
McCulloh,  5  Pa.  St.  473.  As  to  the  effect  of  admissions  made  in  counsel's 
opening  speech,  see  Oscattyan  v.  Arms  Co.,  103  U.  S.  261  ;  Person  v. 
Wilcox,  19  Minn.  449  ;  of.  Adce  v.  Howe,  15  Hun,  20.  As  to  unsolemn 
admissions,  or  those  made  in  casual  conversation,  etc.,  which  are  not 
usually  admitted,  see  Saunders  v.  McCarthy,  8  Allen,  43  ;  Rockwell  v. 
Taylor,  41  Ct.  55  ;  McKeen  v.  Gammon,  33  Me.  187  ;  Douglass  v.  Mitch- 
ell's Excr. ,  35  Pa.  St.  441 ;  Treadway  v.  S.  C.  etc.  R.  Co. ,  40  la.  526  ;  cf. 
Murray  v.  Chase,  134  Mass.  92.  As  to  admissions  made  on  a  former 
trial,  see  Perry  v.  Simpson,  etc.  Co.,  40  Ct.  313  ;  Hollcy  v.  Young,  68  Me. 
215  ;  Union  Pac.  R.  Co.  v.  Slump,  28  Kan.  394  ;  Owen  v.  Cawley,  36  N.  Y. 
600.  As  to  admissions  by  an  attorney  in  the  pleadings,  see  the  cases 
cited  in  the  preceding  article  (p.  40,  ante).  In  this  country  it  is  the  gen- 
eral rule,  that  an  attorney  cannot  compromise  or  settle  a  suit  without  his 
client's  consent.  Mandeville  v.  Reynolds,  68  N.  Y.  528  ;  Derwert  v. 
Loomer,  21  Ct.  245.] 

'  [Gr.  Ev.  i.  $  176.  Thus  the  admission  of  one  e.xecutor  or  adminis- 
trator is  not  competent  against  his  co-executor  or  co-administrator  to  es- 
tablish a  demand  against  the  estate  of  the  deceased,  nor  is  it  receivable 
against  heirs  or  devisees  (^Church  v.  Howard,  79  N.  Y.  415,  418  ;  Osgood 
v.  Manhattan  Co.,  3  Cow.  612)  ;  nor  the  admission  of  one  devisee  or 
legatee  against  another  {Clark  v.  Morrison,  25  Pa.  St.  453  ;  La  Bau  v. 
Vanderbilt,  3  Redf.  384;  Shailer  v.  Bumstcad,  99  Mass.  112,  127)  ;  nor  of 
one  tenant  in  common  against  another  {Dan  v.  Brown,  4  Cow.  483  ; 
Pier  V.  Duff,  63  Pa.  St.  59)  ;  nor,  generally,  of  one  defendant  in  a  tort 
action  against  another,  unless  made  as  part  of  the  res  gestcs,  as  in  con- 
spiracy {^Carpenter  v.    Weldcn,  S  Sandf.   77  ;    Wilson  v.  O'Day,  5  Daly, 


4§  A  DIGEST  OF  [Part  1. 

In  cases  in  which  actions  founded  on  a  simple  contract  have 
been  barred  by  the  Statute  of  Limitations  no  joint  contractor 
or  his  personal  representative  loses  the  benefit  of  such  statute, 
by  reason  only  of  any  written  acknowledgment  or  promise 
made  or  signed  by  (or  by  the  agent  duly  authorized  to  make 
such  acknowledgment  or  promise  of)  any  other  or  others  of 
them  (or  by  reason  only  of  payment  of  any  principal,  interest, 
or  other  money,  by  any  other  or  others  of  them).' 

A  principal,  as  such,  is  not  the  agent  of  his  surety  for  the 
purpose  of  making  admissions  as  to  the  matters  for  which  the 
surety  gives  security." 

Illustrations. 

(</)  The  question  is,  whether  a  parcel,  for  the  loss  of  which  a  Railway 
Company  is  sued,  was  stolen  by  one  of  their  servants.  Statements  made 
by  the  station-master  to  a  police  officer,  suggesting  that  the  parcel  had 
been  stolen  by  a  porter,  are  deemed  to  be  relevant,  as  against  the  rail- 
way, as  admissions  by  an  agent.  ^ 


354  ;  cf.  Edgerton  v.  Wolf,  6  Gray,  453).  As  to  the  admissions  of  a  cestui 
que  trust,  see  Pope  v.  Devercux,  5  Gray,  409.] 

>  9  Geo.  IV.  c.  14,  s.  I.  The  first  set  of  words  in  parenthesis  was  added 
by  19  &  20  Vict.  c.  97,  s.  13  ;  the  second  set  by  s.  14  of  the  same  Act. 
The  language  is  slightly  altered.  [Similar  statutes  have  been  passed  in 
several  States  of  this  country.  Mass.  Pub.  St.,  c.  197,  §  17  ;  N.  J.  Rev.,  p. 
595,  §  10  ;  Maine  Rev.  St.  c.  82,  §^  98,  100  ;  Faulkner  v.  Bailey,  123 
Mass.  588  ;  Bailey  v.  Corliss,  51  Vt.  366  ;  Rogers  v.  Anderson,  40  Mich. 
290.  In  New  York  and  some  other  States,  a  similar  common  law  rule 
prevails  ;  but  in  a  number  of  the  States,  the  contrary  rule  of  the  Eng- 
lish common  law  prevails,  which  was  established  by  IVhitcomb  v.  IVkit- 
ing.     See  p.  45  ante,  note  2  ;  also  Illustration  (/).] 

=  [Gr.  Ev.  i.  %  187  ;  Hatch  v.  Elkins,  65  N.  Y.  489  ;  Rae  v.  Beach,  76  N. 
Y.  164  ;  Chelmsford  Co.  v.  Demarest.,  7  Gray,  i.  But  declarations  of  the 
principal  are  admissible  when  forming  part  of  the  res gestce.  Id.;  Batik  of 
Brighton  v.  Smith,  12  Allen,  243;  %qq  Agricultural  Ins.  Co.  v.  Keeler,  44 
Ct.  161  ;  Bissell  v.  Saxton,  66  N.  Y.  55.] 

3  Kirkstall  Brewery  v.  Furness  Ry. ,  L.  R.  9  Q.  B.  468  ;  [see  Green  v. 
B.  &■  L.  R.  Co. ,  128  Mass.  221  ;  B.  &'  O.  R.  Co.  v.  Campbell,  36  O.  St. 
647  ;  Green  v.  JV.  Y.  C.  R.  Co.,  12  Abb.  Pr.  (N.  S.)  473  ;  cf.  Hoagv,  La- 
mont,  60  N.  Y.  96.] 


Chap,  IV.j        THE  LAW  OF  EVIDENCE.  49 


(b)  A  allows  his  wife  to  carry  on  the  business  of  his  shop  in  his  ab- 
sence. A  statement  by  her  that  he  owes  money  for  goods  supplied  to 
the  shop  is  deemed  to  be  relevant  against  him  as  an  admission  by  an 
agent.' 

(c)  A  sends  his  servant,  B,  to  sell  a  horse.  What  B  says  at  the  time  of 
the  sale,  and  as  part  of  the  contract  of  sale,  is  deemed  to  be  a  relevant 
fact  as  against  A,  but  what  B  says  upon  the  subject  at  some  different 
time  is  not  deemed  to  be  relevant  as  against  A  -  (though  it  might  have 
been  deemed  to  be  relevant  if  said  by  A  himselO. 

((/)  The  question  is,  whether  a  ship  remained  at  a  port  for  an  unreason- 
able time.  Letters  from  the  plaintiff's  agent  to  the  plaintiff  containing 
statements  which  would  have  been  admissions  if  made  by  the  plaintiff 
himself  are  deemed  to  be  irrelevant  as  against  him.' 

(^)  A,  B,  and  C  sue  D  as  partners  upon  an  alleged  contract  respecting 
the  shipment  of  bark.  An  admission  by  A  that  the  bark  was  his  exclu- 
sive property  and  not  the  property  of  the  firm  is  deemed  to  be  relevant 
as  against  B  and  C.'' 

(/")  A,  B,  C,  and  D  make  a  joint  and  several  promissory  note.  Either 
can  make  admissions  about  it  as  against  the  rest.^ 

(^)  The  question  is,  whether  A  accepted  a  bill  of  exchange.  A  notice 
to  produce  the  bill  signed  by  A's  solicitor  and  describing  the  bill  as  having 
been  accepted  by  A  is  deemed  to  be  a  relevant  fact.' 

{//)  The  question  is,  whether  a  debt  to  A,  the  plaintiff,  was  due  from  B, 
the  defendant,  or  from  C.  A  statement  made  by  A's  solicitor  to  B's  so- 
licitor in  common  conversation  that  the  debt  was  due  from  C  is  deemed 
not  to  be  relevant  against  A.' 

(/■)  One  co-part-owner  of  a  ship  cannot,  as  such,  make  admissions 
against  another  as  to  the  part  of  the  ship  in  which  they  have  a  common 


'  Clifford  \.  Purton,  i  Bing.  199.     {RiUy  v.  Sitydcim,  4  Barb.  222.] 

'  Helyear  v.  Hawkc,  5  Esp.  72  ;   [see  Ahem  v.  Goodspecd,  72  N.  Y.  108.] 

3  Langliorn  v.  Allnutt,  4  Tau.  511. 

^  Lucas  v.  De  La  Cour,  i  M.  &  S.  249  ;  [cf.  Brake  v.  Kimball,  5  Sandf. 
237.] 

5  lVhitco7nb  v.  Whiting,  I  S.  L.  C.  644.  [The  decision  in  this  case  was 
that  the  acknowledgment  of  one  of  the  drawers  of  a  joint  and  several  note 
took  it  out  of  the  Statute  of  Limitations  as  against  the  others.  This  case 
is  followed  in  some  States  of  this  country,  rejected  in  others.  Kallenbach 
v.  Dickinson,  loo  111.  427  ;  see  p.  45,  ante,  note  3.] 

•  Holt  V.  Squire^  Ry.  &  Mo.  282. 

''Fetch  V.  Lyon,  9  Q.  B.  147. 


50  A  DIGEST  OF  [Part  1. 

interest,  even  if  he  is  co-partner  with  that  other  as  to  other  parts  of  the 
ship.' 

(J)  A  is  surety  for  B,  a  clerk.  B  being  dismissed  makes  statements 
as  to  sums  of  money  which  he  has  received  and  not  accounted  for. 
These  statements  are  not  deemed  to  be  relevant  as  against  A,  as  ad- 
missions." 

Article  i8.* 
admissions  by  strangers. 

Statements  by  strangers  to  a  proceeding  are  not  relevant 
as  against  the  parties  except  in  the  cases  hereinafter  men- 
tioned.' 

In  actions  against  sheriffs  for  not  executing  process  against 
debtors,  statements  of  the  debtor  admitting  his  debt  to  be  due 
to  the  execution  creditor  are  deemed  to  be  relevant  as  against 
the  sheriff.* 

In  actions  by  the  trustees  of  bankrupts  an  admission  by  the 
bankrupt  of  the  petitioning  creditor's  debt  is  deemed  to  be 
relevant  as  against  the  defendant.^ 


*  See  Note  XII. 
^  yaggers  v.  Binning,  i   Star.   64.      \The  New  Orleans,  106  U.   S.  13; 
McLellan  v.  Cox,  36  Me.  95  ;  see  Smith  v.  Aldrich,  12  Allen,  553.] 

2  Smith  V.  VVhippingham,  6  C.  &  P.  78.  See  also  Evans  v.  Beattic,  5 
Esp.  26  ;  Bacon  v.  Chesne}\  i  Star.  192  ;  Caermarthcn  R.  C.  v.  Manchester 
R.  C. ,  L.  R.  8  C.  P.  685. 

3  Coole  v.  Braham,  3  Ex.  183.  \Brown  v.  Mailler,  12  N.  Y.  118  ;  Happy 
v.  Mosher,  48  N.  Y.  313;  Lyon  v.  Manning,  133  Mass.  439;  Wilson  v. 
Bowden,  113  id.  422  ;  Heller  v.  Howard,  11  Bradw.  554.] 

'^  Ketnpland  \.  Macaulay,  Peake,  95;  Willianis  v.  Bridges,  2  Star.  42; 
\Hart\.  Stevenson,  25  Ct.  499.] 

^Jarrett\.  Leonard,  2  M.  &  S.  265  (adapted  to  the  new  law  of  bank- 
ruptcy). [This  rule  as  thus  stated  is  peculiarly  applicable  to  English 
practice.  But  in  New  York  it  is  held  that  the  declarations  of  a  bankrupt, 
made  before  the  bankruptcy,  are  competent  against  his  assignee  in  bank- 
ruptcy, to  establish  or  support  a  claim  against  the  bankrupt's  estate.  Von 
Sachs  v.  Kretz,  72  N.  Y.  548  ;  see  Holt  v.  Walker^  26  Me.  107  ;  Games  v. 
White,  15  Gray,  378  ;  /«  re  Clark,  9  Blatch.  379.] 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  51 

Article  19.* 

admission  by  person  referred  to  by  party. 

When  a  party  to  any  proceeding  expressly  refers  to  any  other 
person  for  information  in  reference  to  a  matter  in  dispute,  the 
statements  of  that  other  person  may  be  admissions  as  against 
the  person  who  refers  to  him.' 

Illustration. 

The  question  is,  whether  A  delivered  goods  to  B.  B  says  "  if  C  "  (the 
carman)  "  will  say  that  he  delivered  the  goods,  I  will  pay  for  them."  C's 
answer  may  as  against  B  be  an  admission. - 

Article  20.  f 

ADMISSIONS   MADE   \VITHOUT   PREJUDICE. 

No  admission  is  deemed  to  be  relevant  in  any  civil  action 
if  it  is  made  either  upon  an  express  condition  that  evi- 
dence of  it  is  not  to  be  given/ or  under  circumstances  from 
which  the  judge   infers   that  the  parties  agreed  together  that 


*  See  Note  XIIL  +  See  Note  XIV. 

'  [Gr.  Ev.  i.  %  182  ;  Gott  v.  Dinsmore^  in  Mass.  45  ;  Wekle  v.  Spelmav, 
I  Hun,  634,  4  T.  &  C.  649  ;  Chadsey  v.  Greene,  24  Ct.  562  ;  Chapman  v. 
Twitckell,  37  Me.  59.  But  the  statements  of  the  referee  are  only  admis- 
sible when  they  relate  to  the  subject-matter  of  the  reference  (Duval  v. 
Covenkover,  4  Wend.  561  ;  Lambert  v.  People,  76  N.  Y.  220  ;  Allen  v.  Kil~ 
linger^  8  Wall.  480)  ;  nor  are  those  made  before  the  reference  admissible. 
Cohn  V.  Goldman,  76  N.  Y.  284. 

As  to  the  statements  of  an  interpreter,  see  Gr.  Ev.  i.  (J  183  ;  Camerlin 
V.  Palmer  Co.,  10  Allen,  539.] 

'^  Daniel  \.  Pitt,  1  Camp.  366,  n. 

3  Cory  V.  Bret  ton,  4  C.  &  P.  462  ;  [Copelandv.   Taylor,  99  Mass.  613.] 


52  A  DIGEST  OF  [Part  I. 

evidence  of  it  should  not  be  given,'  or  if  it  was  made  under 
duress." 

Article  21. 

confessions  defined. 

A  confession  is  an  admission  made  at  any  time  by  a  person 
charged  with  a  crime,  stating  or  suggesting  the  inference  that 
he    committed    that    crime.'     Confessions,    if    voluntary,    are 


'  Paddock  V.  Forester,  3  M.  &  G.  918.  [Under  this  rule  statements  in- 
corporating the  express  qualification  that  they  shall  be  "without  preju- 
dice "  are  deemed  not  to  be  relevant  as  admissions.  S.  C.  ;  see  Toiun- 
send  V.  AIercha?ifs'  Ins.  Co.,  4.  J.  &  Sp.  772.  So  statements  made  as  offers 
to  compromise  a  claim,  or  to  "  buy  peace,"  as  it  is  termed,  are  not  com- 
petent evidence  as  admissions.  Gr.  Ev.  i.  $  192  ;  Draper  v.  Hatfield,  124 
Mass.  53 ;  Lairrence  v.  Hopkins,  13  Johns.  288  ;  Home  Ins.  Co.  v.  Balti- 
more, etc.  Co.,  93  U.  S.  527  ;  Campan  v.  Dubois,  39  Mich.  274.  They  are 
equivalent  to  statements  "  without  prejudice."  West  v.  Smith,  loi 
U.  S.  263,  273  ;  Reynolds  v.  Manning,  15  Md.  510.  But  an  admission  of 
an  independent  fact  is  relevant,  though  made  during  a  negotiation  for 
compromise.  Bartlett  v.  Tarbox,  i  Abb.  Dec.  120 ;  Marvin  v.  Rich- 
mond, 3  Den.  58  ;  Durgin  v.  Somers,  117  Mass.  55  ;  Arthur  v.  yames,  28 
Pa.  St.  236;  Doon  v.  Rarey,  49  Vt.  293  ;  Plumtner  v.  Currier,  52  N.  H. 
287.     This  is  the  general  American  rule.] 

^  Stockfieth  v.  De  Tastet,  per  Ellenborough,  C.  J.,  4  Camp.  11.  [But 
admissions  made  by  a  party,  while  testifying  as  witness  in  a  prior  suit,  are 
relevant  against  him  ;  the  legal  constraint  to  testify  is  not  deemed 
"duress"  under  this  rule.  Gr.  Ev.  i.  §  193;  see  Art.  15  ante.,  note  2; 
Tooker  v.  Conner.^  2  Hilt.  71. 

A  court  of  equity  will  sometimes  restrain  the  use  of  admissions  ob- 
tained by  fraud  and  duress.      Callendcr  v.  Callender,  53  How.  Pr.  364.] 

'^  [The  word  "  confession  "  denotes  an  acknowledgment  of  guilt.  Ac- 
knowledgments of  other  matters  of  fact  in  a  criminal  case  are  termed 
"admissions."  Gr.  Ev.  i.  §  170;  see  People  v.  Parton,  49  Cal.  632; 
Comm.  v.  Sanborn,  116  Mass.  61. 

Confessions  may  not  only  be  made  expressly,  but  may  also  be  implied 
from  a  person's  keeping  silence  when  he  is  charged  with  a  crime  under 
such  circumstances  that   he  would  naturally  reply.     (See   Art.  8,  atite. 


Chap.  IV.J       THE  LAW  OF  EVIDENCE.  53 


deemed  to  be  relevant  facts  as  against  the  persons  who  make 
them  only.' 

Article  22.* 

confession  caused   dy  inducement,  threat,  or  prom- 
ise, when  irrelevant  in  criminal  proceeding. 

No  confession  is  deemed  to  be  voluntary  if  it  appears  to  the 
judge  to  have  been  caused  by  any  inducement,  threat,  or 
promise,  proceeding  from  a  person  in  authority,  and  having 
reference  to  the  charge  against  the  accused  person,  whether 


*  See  Note  XV. 
last  paragraph,  and  note).     This  is  true  in  some  States,  even  though  he 
be  under  arrest  at  the  time.     Kelley  v.  People,  55  N.  Y.  565  ;  Murphy  v. 
State,  36  O.  St.  628  ;  cf.  Ettitiger  v.  Comm.,  98  Pa.  St.  338  ;  contra,  Comm. 
V.  McDertnott,  123  Mass.  440. 

It  is  a  general  rule  that  an  extra-judicial  confession  is  not  sufficient  to 
sustain  a  conviction  unless  corroborated  by  additional  proof  oi  i}ixQ  corpus 
delicti.  Gr.  Ev.  i.  §  217  ;  People  v.  Hcimcssy,  15  Wend.  147 ;  N.  Y.  Code 
Cr.  Pro.  $  395 ;  South  v.  People,  98  111.  261  ;  People  v.  Thrall,  50  Cal. 
415;  State  v.  Patterson,  73  Mo.  695;  Gray  v.  Comm.,  loi  Pa.  St.  380; 
People  v.  Lane^  49  Mich.  340  ;  Blackburn  v.  State,  23  O.  St.  146  ;  State 
v.  Knowles,  48  la.  598  ;  cf.  Comm.  v.  Tarr,  4  Allen,  315.  It  is  also  an 
important  rule  that  the  whole  of  a  confession  is  to  be  taken  together,  so 
that  the  prisoner  may  have  the  benefit  of  all  qualifying  or  exculpatory 
statements  incorporated  therein.  Gr.  Ev.  i.  §  218  ;  State  v.  McDonnell, 
32  Vt.  491  ;  Morehcad  v.  State,  34  O.  St.  212  ;  Corbett  v.  State,  31 
Ala.  329  ;  see  People  v.  Ruloff,  3  Park.  Cr.  401.  But  part  of  a  conver- 
sation may  be  proved,  if  it  amounts  to  a  confession  which  is  substan- 
tially complete.  Com.m.  v.  Pitsinger,  110  Mass.  loi  ;  Lez'ison  v.  State, 
54  Ala.  520  ;  Dob  v.  State,  32  id.  560  ;  cf.  People  v.  Gelabcrt,  39  Cal. 
663.] 

'  [Thus  the  confession  of  one  of  two  or  more  defendants  in  a  criminal 
case  is  evidence  against  himself  only,  and  not  against  the  others.  Comm. 
V.  higraham,  7  Gray,  46  ;  State  v.  Albert,  73  Mo.  347  ;  People  v.  Stevens, 
47  Mich.  411  ;  Fife  v.  Comm.,  29  Pa.  St.  429;  Gore  v.  State^  58  Ala.  391. 
As  to  the  declarations  of  conspirators,  see  .^rt.  4,  ante.\ 


54  A  DIGEST  OF  [Part  1. 

addressed  to  him  directly  or  brought   to  his  knowledge  in- 
directly ;  ' 

and  if  (in  the  opinion  of  the  judge)''  such  inducement,  threat,  or 
promise, gave  the  accused  person  reasonable  grounds  for  suppos- 
ing that  by  making  a  confession  he  would  gain  some  advantage 
or  avoid  some  evil  in  reference  to  the  proceedings  against  him.' 


'  [The  admissibility  of  confessions  is  to  be  determined  by  the  judge. 
Willett  V.  People,  27  Hun,  469  ;  Comm.  v.  Culver,  126  Mass.  464  ;  State  v. 
Patterson,  73  Mo.  695  ;  Redd  v.  State,  69  Ala.  255  ;  and  cases  infra.  But 
in  some  States,  the  confession,  when  offered  in  evidence,  is  deemed  prima 
facie  involuntary,  and  the  burden  of  proof  is  on  the  prosecutor  to  show  it 
to  be  voluntary.  Young  v.  State,  68  Ala.  569  ;  Nicholson  v.  State,  38  Md. 
140  ;  People  v.  Soto,  49  Cal.  67  ;  Thompson  v.  Comm. ,  20  Gratt.  724.  In 
other  States,  it  is  considered  prima  facie  voluntary,  but  the  defendant 
may  object  to  its  being  admitted  in  evidence  and  show  it  to  have  been  im- 
properly obtained  and  so  cause  its  exclusion.  Comm.  v.  Sego,  125  Mass. 
210  ;  Comm.  v.  Culver,  supra ;  Rufer  v.  State,  25  O.  St.  464  ;  State  v. 
Davis,  34  La.  Ann.  351  ;  cf.   Woodford  v.  People,  62  N.  Y.  117.] 

^  Judges  are  now  less  disposed  than  they  formerly  were  to  hold  that 
the  language  used  amounts  to  even  an  inducement.  In  R.  v.  Baldry, 
decided  in  1852  (2  Den.  C.C.  430),  the  constable  told  the  prisoner  that  he 
need  not  say  anything  to  criminate  himself,  but  that  what  he  did  say 
would  be  taken  down  and  used  as  evidence  against  him.  It  was  held 
that  this  was  not  an  inducement,  though  there  were  earlier  cases  which 
treated  it  as  such.  In  R.  v.  yarvis  (L.  R.  i  C.  C.  R.  96)  the  following 
was  held  not  to  be  an  inducement,  "  I  think  it  is  right  I  should  tell  you 
that  besides  being  in  the  presence  of  my  brother  and  myself  "  (prisoner's 
master)  "you  are  in  the  presence  of  two  officers  of  the  public,  and  I 
should  advise  you  that  to  any  question  that  may  be  put  to  you,  you  will 
answer  truthfully,  so  that  if  you  have  committed  a  fault  you  may  not  add 
to  it  by  stating  what  is  untrue.  Take  care.  We  know  more  than  you 
think  we  know. — So  you  had  better  be  good  boys  and  tell  the  truth."  R. 
V.  Reeve,  L.  R.  i  C.  C.  R.  364.  [See  R.  v.  Fetinell,  6  Q.  B.  D.  147 ; 
Comm.  v.  Nott,  135  Mass.  269.] 

3  \People  v.  Phillips,  42  N.  Y.  200  ;  Comm.  v.  Curtis,  97  Mass.  574 ; 
Fife  V.  Comm.  29  Pa.  St.  429 ;  Flagg  v.  People,  40  Mich.  706 ;  State  v. 
Jones,  54  Mo.  478.  But  a  confession  made  to  a  person  in  authority,, 
whether  obtained  by  his  inducements  or  not,  is  deemed  to  be  voluntary, 
if  no  inducements  of  the  kind  stated  in  the  text  are  used.  Comm.  v.  Sego, 
125  Mass.  210 ;  People  v.    Wentz,  37  N.  Y.  303 ;    State  v.  Grant,  22  Me. 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  55 

A  confession  is  not  involuntary,  only  because  it  appears  to 
have  been  caused  by  the  exhortations  of  a  person  in  authority 
to  make  it  as  a  matter  of  rehgious  duty,'  or  by  an  inducement 
collateral  to  the  proceeding,''  or  by  inducements  held  out  by  a 
person  not  in  authority.^ 


171  ;  State  v.  Partner,  43  la.  494  ;  Comm.  v.  Morey,  i  Gray,  461";  Fife  v. 
Comm.,  supra.  So  confessions  made  by  the  prisoner  while  in  custody  are 
competent,  if  the  officer  use  no  improper  inducements  or  threats  {People  v. 
Cox,  80  N.  Y.  501  ;  Hopt  v.  Utah,  no  U.  S.  574  ;  Comm.  v.  Cuffee,  108 
Mass.  285  ;  Comm.  v.  Mosler,  4  Pa.  St.  264  ;  jfackson  v.  State,  6g  Ala. 
249),  even  though  the  arrest  be  illegal.  Balboy.  People,  80  N.  Y.  484. 
The  fact  that  confessions  are  made  under  actual  fear  does  not  make 
them  involuntary,  if  this  fear  were  not  excited  by  improper  inducements 
or  threats.     Comm.  v.  Smith,  119  Mass.  305. 

In  some  States,  these  common  law  rules  are  changed  by  statute.  Thus 
in  New  York  it  is  now  provided  that  a  confession,  whether  made  in  judicial 
proceedings  or  to  a  private  person,  can  be  given  in  evidence,  unless  made 
under  the  influence  of  fear  produced  by  threats,  or  upon  a  stipulation  of 
the  district  attorney  not  to  prosecute  therefor  ;  but  there  must  be  ad- 
ditional proof  of  the  commission  of  the  crime  to  warrant  conviction. 
Code  Cr.  Pro.  §  395  ;  People  v.  McGloin,  91  N.  Y.  241.  But  cases  decided 
in  New  York  before  this  statute  are  cited  herein,  since  they  well  illustrate 
the  common-law  rule.] 

'  [Illustration  {b)  ;  cf.  Comm.  v.  Drake,  15  Mass.  161. J 

2  [Illustration  (r);  State  v.  Tatso,  50  Vt.  483;  People  v.  Cox,  80  N.  Y. 
501  ;  State  v.    Wcntworth,  37  N.  H.  196.] 

3  [C/.  5.  V.  Stone,  8  F.  R.  232;  Smith  v.  Comm.,  10  Gratt.  734;  Shifflet 
V.  Comm.,  14  Id.  652  ;  Yomigv.  Comm.,  8  Bush.  (Ky.)  366;  State  v.  Pat- 
terson, 73  Mo.  69s  ;  cf.  Ulrich  v.  People,  39  Mich.  245  ;  State  v.  Pot- 
ter, 18  Ct.  166.  In  Massachusetts  it  is  said  that  those  confessions  are 
excluded  which  are  obtained  by  threats  of  harm  or  promises  of  favor  held 
out  by  a  person  in  authority,  or  standing  in  any  relation  from  which  the 
law  will  presume  that  his  communications  would  be  likely  to  exercise  an 
influence  over  the  mind  of  the  accused.  Comm.  v.  Tuckermau,  10  Gray, 
173,  190.  And  in  other  States  there  are  rules  more  or  less  similar  to  this. 
Murphy  v.  State,  63  Ala.  i  ;  People  v.  Wolcott,  51  Mich.  612;  Spears  v. 
State,  2  O.  St.  583  ;  Beggarly  v.  State,  8  Baxt.  520. 

Confessions  extorted  by  mob  violence,  or  by  like  forcible  means,  have 
been  excluded.  Miller  v.  People,  39  111.  457  ;  Young  v.  State,  68  Ala. 
569 ;  Jordan  v.  State,  32  Miss.  382  ;  State  v.  Resells,  34  La.  Ann.  381.] 


56  A  DIGEST  OF  [Part  I. 

The  prosecutor,  officers  of  justice  having  the  prisoner  in  cus- 
tody, magistrates,  and  other  persons  in  similar  positions,  are 
persons  in  authority.'  The  master  of  the  prisoner  is  not  as 
such  a  person  in  authority,  if  the  crime  of  which  the  person 
making  the  confession  is  accused  was  not  committed  against 
him.' 

A  confession  is  deemed  to  be  voluntary  if  (in  the  opinion  of 
the  judge)  it  is  shown  to  have  been  made  after  the  complete 
removal  of  the  impression  produced  by  any  inducement,  threat, 
or  promise  which  would  otherwise  render  it  involuntary." 

Facts  discovered  in  consequence  of  confessions  improperly 
obtained,  and  so  much  of  such  confessions  as  distinctly  relate 
to  such  facts,  may  be  proved.'' 

Illustrations. 

{a)  The  question  is,  whether  A  murdered  B. 

A  handbill  issued  by  the  Secretary  of  State,  promising  a  reward  and 
pardon  to  any  accomplice  who  would  confess,  is  brought  to  the  knowl- 
edge of  A,  who,  under  the  influence  of  the  hope  of  pardon,  makes  a  con- 
fession.    This  confession  is  not  voluntary.^ 

{b)  A  being  charged  with  the  murder  of  B,  the  chaplain  of  the  gaol 
reads  the  Commination   Service  to  A,  and  exhorts  him  upon  religious 


'  [People  V.  Ward,  15  Wend.  231  ;  Wolf  v.  Comm.,  30  Gratt.  833  ;  State 
V.  Brockman,  46  Mo.  566  ;  Rector  v.  Comtn.,  80  Ky.  468;  U.  S.  v.  Pock- 
lington,  2  Cr.  C.  C.  293;  State  v.  Stalej,  14  Minn.  105  ;  and  cases  cited 
in  last  note  and  in  note  3,  on  p.  54.] 

2  [Smith  V.  Comm.,  10  Gratt.  734  ;  cf.  Comm.  v.  Sego,  125  Mass.  210.] 

2  [Illustration  (e)  ;  Ward  v.  People,  3  Hill,  395  ;  Comm.  v.  Howe,  132 
Mass.  250;  Thompson  v.  Comtn.,  20  Gratt.  724  ;  State  \.  Brow?i,  j^  Mo. 
631  ;  Rcddv.  State,  69  Ala.  255  ;    Comm.  v.  Harman,  4  Pa.  St.  269.] 

4  [Illustration  (/)  ;  Duffy  v.  People,  26  N.  Y.  588  ;  People  v.  Hoy  Yen, 
34  Cal.  176 ;  Comm.  v.  James,  99  Mass.  438  ;  Murphy  v.  State,  63  Ala.  i  ; 
State  V.  Mortimer,  20  Kan.  93  ;  see  Murphy  v.  People,  tj,  N.  Y.  590.  Some 
of  these  cases  seem  to  adopt  a  more  restricted  rule  than  that  of  the  text, 
as  to  admitting  proof  of  words  of  confession.  But  sometimes  the  whole 
confession  is  received,  when  thus  corroborated,  Laws  v,  Comm.,  84  Pa, 
St.  200.] 

»  R,  V.  Boswdl,  C.  &  Marsh.  584, 


Chap.  IV.]       THE  LAW  OF  EVIDENCE.  57 


grounds  to  confess  his  sins.  A,  in  consequence,  makes  a  confession. 
This  confession  is  voluntary.' 

(c)  The  gaoler  promises  to  allow  A,  who  is  accused  of  a  crime,  to  see 
his  wife,  if  he  will  tell  where  the  property  is.  A  does  so.  This  is  a  vol- 
untary confession.  2 

((/)  A  is  accused  of  child  murder.  Her  mistress  holds  out  an  induce- 
ment to  her  to  confess,  and  she  makes  a  confession.  This  is  a  voluntary 
confession,  because  her  mistress  is  not  a  person  in  authority. ^ 

(e)  A  is  accused  of  the  murder  of  B.  C,  a  magistrate,  tries  to  induce 
A  to  confess  by  promising  to  try  to  get  him  a  pardon  if  he  does  so.  The 
Secretary  of  State  informs  C  that  no  pardon  can  be  granted,  and  this  is 
communicated  to  A.  After  that  A  makes  a  statement.  This  is  a  volun- 
tary confession.'' 

(/")  A.,  accused  of  burglary,  makes  a  confession  to  a  policeman  under 
an  inducement  which  prevents  it  from  being  voluntary.  Part  of  it  is 
that  A  had  thrown  a  lantern  into  a  certain  pond.  The  fact  that  he 
said  so,  and  that  the  lantern  was  found  in  the  pond  in  consequence, 
may  be  proved.* 

Article  23.* 

confessions  made  upon  oath,  etc. 

Evidence  amounting  to  a  confession  may  be  used  as  such 
against  the  person  who  gives  it,  although  it  was  given  upon 
oath,  and  although  the  proceeding  in  which  it  was  given  had 


*  See  Note  XVI. 
'  R.  v.  Gilham,  i  Moo.  C.  C.  186.  In  this  case  the  exhortation  was 
that  the  accused  man  should  confess  "  to  God,"  but  it  seems  from 
parts  of  the  case  that  he  was  urged  also  to  confess  to  man  "to  repair 
any  injury  done  to  the  laws  of  his  country."  According  to  the  practice 
at  that  time,  no  reasons  are  given  for  the  judgment.  The  principle 
seems  to  be  that  a  man  is  not  likely  to  tell  a  falsehood  in  such  cases, 
from  religious  motives.  The  case  is  sometimes  cited  as  an  authority 
for  the  proposition  that  a  clergyman  may  be  compelled  to  reveal  confes- 
sions made  to  him  professionally.     It  has  nothing  to  do  with  the  subject. 

2  R.  v.  Lloyd,  6  C.  &  P.  393. 

3  R.  V.  Moore^  2  Den.  C.  C.  522. 
"  R.  V.  Clewes,  4  C.  &  P.  221. 

''  R.  v.  Gould,  9  C.  &  P.  364.     This  is  not  consistent,  so  far  as  the  proof 
of  the  words  goes,  with  R.  y.  WurivHkshall,  i  Leach,  263. 


58  A  DIGEST  OF  [Part  I. 

reference  to  the  same  subject-matter  as  the  proceeding  in 
which  it  is  to  be  proved,  and  although  the  witness  might  have 
refused  to  answer  the  questions  put  to  him  ; '  but  if,  after  re- 
fusing to  answer  any  such  question,  the  witness  is  improperly 
compelled  to  answer  it,  his  answer  is  not  a  voluntary  confes- 
sion." 

Illustrations. 

{a)  The  answers  given  by  a  bankrupt  in  his  examination  may  be  used 
against  him  in  a  prosecution  for  offences  against  the  law  of  bankruptcy.' 

^b)  A  is  charged  with  maliciously  wounding  B. 

Before  the  magistrates  A  appeared  as  a  witness  for  C,  who  was  charged 
with  the  same  offence.  A's  deposition  may  be  used  against  him  on  his 
own  trial.* 

(c)   [A  is  tried  for  the  murder  of  B. 

Statements  made  by  A  under  oath  at  the  coroner's  inquest  upon  the 
body  of  B  are  competent  evidence  against  him,  though  he  knew  when  he 
made  the  statements  that  he  was  suspected  of  the  crime. ]^ 


1  [Comm.  V.  A7«^,  8  Gray,  501  ;  U.  S.  v.  CAarles,  2  Cr.  C.  C.  76  ;  State 
V.  VVit/iam,  72  Me.  531.  On  the  trial  of  a  person  for  crime,  testimony 
voluntarily  given  by  him  in  a  prior  suit  under  oath,  and  amounting  to  a 
confession,  is  receivable.  Dickerson  v.  State,  48  Wis.  288  ;  Alston  v. 
State,  41  Tex.  39.  But  it  is  provided  in  some  States  by  statute  that  on 
the  preliminary  examination  of  a  prisoner  before  a  committing  magistrate, 
he  shall  not  be  put  under  oath  ;  if,  therefore,  he  is  sworn  and  makes  con- 
fession, such  confession  is  inadmissible.  Gr.  Ev.  i.  §5  224-229  ;  N.  Y. 
Code  Cr.  Pro.  $  198  ;  Htinlrickson  v.  People,  10  N.  Y.  9,  28,  30  ;  Comm. 
V.  Harman,  4  Pa.  St.  269  ;  U.  S.  v.  Duffy,  i  Cr.  C.  C.  164  ;  contra,  People 
V.  Kelley.,  47  Cal.  125. 

Judicial  confessions  do  not  need  corroborative  proof  of  the  corpus 
delicti.     State  v.  Lamb,  28  Mo.  218  ;  Anderson  v.  State,  26  Ind.  89.] 

2  R.  V.  Garbett,  I  Den.  C.  C.  236.  [Gr.  Ev.  i.  $  451  ;  Hendrickson  v. 
People,  10  N.  Y.  9,  27,  31  ;  see  Art.  120,  note,  post.'\ 

3  R.  V.  Scott,  I  D.  &  B.  47  ;  R.  v.  Robinson,  L  R.  I  C.  C.  R.  80  ;  R.  v. 
Widdop,  L.  R.  2  C.  C.  R.  5. 

*  R.  V.  Chidley  fs'  Cumtnins,  8  C.  C.  C.  365  ;  [see  People  v.  Thayer,  i 
Park.  Cr.  595.] 

s  [Teachout  v.  People,  41  N.  Y.  7 ;  People  v.  McGloin,  91  N.  Y.  241,  247  ; 
see  State  v.  Oilman,  51  Me.  206;  IVilHams  v.  Comm.,  29  Pa.  St.  102; 
People  V.  Taylor,  59  Cal.  640.] 


Chap.  I  V.J        THE  LAW  OF  EVIDENCE.  59 

Article  24. 

confession  made  under  a  promise  of  secrecy. 

If  a  confession  is  otherwise  relevant,  it  does  not  become 
irrelevant,  merely  because  it  was  made  under  a  promise  of 
secrecy,  or  in  consequence  of  a  deception  practised  on  the 
accused  person  for  the  purpose  of  obtaining  it,'  or  when  he 
was  drunk,'  or  because  it  was  made  in  answer  to  questions 
which  he  need  not  have  answered,  whatever  may  have  been 
the  form  of  those  questions,^  or  because  he  was  not  warned 
that  he  was  not  bound  to  make  such  confession,  and  that 
evidence  of  it  might  be  given  against  him.* 

Article  25. 

statements  by  deceased  persons,  when  deemed  to  be 
relevant. 

Statements  written  or  verbal  of  facts  in  issue  or  relevant  or 
deemed  to  be  relevant  to  the  issue  are  deemed  to  be  relevant, 


'  [People  V.  Wentz,  37  N.  Y.  303,  305,  306  ;  Price  v.  State,  18  O.  St. 
418  ;  State  v.  Phelps,  74  Mo.  128  ;  Khi£  v.  State,  40  Ala.  314  ;  State  v. 
Staley,  14  Minn.  105.] 

2  \^(:omm.  V.  Howe,  9  Gray,  no;  Jefferds  v.  People,  5  Park.  Cr.  522  ; 
State  V.  Great- ,  28  Minn.  426 ;  People  v.  Ramirez,  56  Cal.  533  ;  State  v. 
Feltes,  51  la.  495  ;  Eskridge  v.  State,  25  Ala.  30.  But  if  the  intoxication 
be  extreme,  the  jury  may  give  the  confession  little  or  no  weight.  (A/.) 
Words  spoken  in  sleep  are  not  admissible  as  a  confession.  People  v. 
Robinson,  19  Cal.  41.] 

^[People  V.  VVeiitz,  37  N.  Y.  303,  306;  Comm.  v.  Ciiffee,  108  Mass. 
285.] 

*  Cases  collected  and  referred  to  in  i  Ph.  Ev.  420,  and  T.  E.  5.  804. 
See,  too,  Joy,  sections  iii.,  iv. ,  v.  [Comm.  v.  Cuffee,  108  Mass.  285. 
Such  a  warning  is,  however,  sometimes  given,  though  not  required  (State 
V.  Oilman,  51  Me.  206  ;  People  v.  Simpson^  48  Mich.  474)  ;  and  sometimes 
upon  a  preliminary  examination  before  a  committing  magistrate,  it  is 
required  by  statute.  State  v.  Lamb,  28  Mo.  218 ;  cf.  Comm.  v.  King,  8 
Gray.  501.] 


6o  A  DIGEST  OF  [Part  I. 

if  the  person  who  made  the  statement  is  dead,  in  the  cases, 
and  on  the  conditions,  specified  in  articles  26-31,  both  inclu- 
sive. In  each  of  those  articles  the  word  "  declaration"  means 
such  a  statement  as  is  herein  mentioned,  and  the  word  "de- 
clarant" means  a  dead  person  by  whom  such  a  statement  was 
made  in  his  lifetime. 

Article  26.* 
dying  declaration  as  to  cause  of  death. 

A  declaration  made  by  the  declarant  as  to  the  cause  of  his 
death,  or  as  to  any  of  the  circumstances  of  the  transaction 
which  resulted  in  his  death,'  is  deemed  to  be  relevant 

only  in  trials  for  the  murder  or  manslaughter  of  the  de- 
clarant ; ' 

and  only  when  the  declarant  is  shown,  to  the  satisfaction  of 


*  See  Note  XVIL 

>  [Gr.  Ev.  i.  ^  156.  But  such  declarations  are  not  competent  evidence 
of  prior  or  subsequent  occurrences,  as  e.^^.,  of  antecedent  threats  (State 
V.  Wood,  53  Vt.  560  ;  Hackett  v.  People,  54  Barb.  370  ;  Jones  v.  State,  71 
Ind.  66),  nor  of  matters  of  opinion,  but  only  of  facts  to  which  declarant 
would  be  competent  to  testify  as  a  witness.  Gr.  Ev.  i.  §  159  ;  Burns  v. 
State,  46  Ind.  311  ;  People  v.  Taylor,  59  Cal.  640 ;  People  v.  Shaw,  63 
N.  Y.  36.  But  they  are  admissible,  though  made  in  answer  to  leading 
questions,  or  obtained  by  solicitation,  or  expressed  by  signs  instead  of 
words.  Maine  v.  People,  9  Hun,  113  ;  yottes  v.  State,  71  Ind.  66.  The 
constitutional  provision  that  the  accused  shall  be  confronted  with  the 
witnesses  against  him  does  not  e.xclude  evidence  of  dying  declarations. 
Brown  v.  Comm.,  73  Pa.  St.  321,  328;  State  v.  Dickinson,  41  Wis.  299; 
Comm.  V.  Carey,  12  Cush.  246  ;  Robbins  v.  State,  8  O.  St.  131.] 

2  [People  V.  Davis,  56  N.  Y.  95  ;  Kilpatrick  v.  Com?n.,  31  Pa.  St.  198  ; 
Scott  V.  People,  63  111.  508  ;  and  other  cases  under  this  article.  Thus 
such  evidence  is  not  received  in  civil  actions  (  Wilson  v.  Boerem,  15  Johns. 
286),  though  they  be  actions  for  injury  causing  death  (Daily  v.  N.  Y. 
etc.  R.  Co.  32  Ct.  356 ;  Waldelev.  N.  V.  C.  R.  Co.,  19  Hun,  69  ;  Marshall 
v.  Chicago,  etc.  R.  Co.,  48  111.  475)  ;  nor  in  other  criminal  cases.  John- 
son V.  State,  50  Ala.  456  ;  see  Illustration  (<!■).] 


C H A V.  I \' . ]         77/A'  /..  /  ir  OF  E VIDENCE.  6 1 

the  judge,'  to  have  been  in  actual  danger  of  death,  and  to  have 
given  up  all  hope  of  recovery  at  the  time  when  his  declaration 
was  made." 

Such  a  declaration  is  not  irrelevant  merely  because  it  was 
intended  to  be  made  as  a  deposition  before  a  magistrate,  but 
is  irregular.' 


'  [Gr.  Ev.  i.  §  i6o ;  Kehoe  v.  Comm.,  85  Pa.  St.  127  ;  Maine  v.  People,  9 
Hun,  113;  Comm.  v.  Roberts,  108  Mass.  296.  The  person  offering  the 
declarations  in  evidence  must  show  that  they  were  made  under  the  sense 
of  impending  death.  This  maybe  shown  by  the  declarant's  own  state- 
ments, by  his  acts  indicating  a  sense  that  death  is  near,  and  by  other 
attendant  circumstances.  Gr.  Ev.  i.  $  158  ;  People  v.  Simpson,  48  Mich. 
474  ;  Donnelly  v.  State,  26  N.  J.  L.  463  and  601  ;  People  v.  Taylor^  59 
Cal.  640;  Small  v.  Comm.,  91  Pa.  St.  304;  People  v.  Knickerbocker,  i 
Park.  Cr.  302  ;  State  v.  Elliott.^  45  la.  486.  This  preliminary  evidence 
may  be  given  in  the  presence  of  the  jury.  Sullivan  v.  Comm. ,  93  Pa.  St. 
284  ;  but  see  Starkey  v.  People,  17  111.  17.] 

2  \^Brotherton  v.  People,  75  N.  Y.  159  ;  Comm.  v.  Hancy.  127  Mass.  455  ; 
Alison  V.  Comm.,  99  Pa.  St.  17  ;  Ex  parte  A^cttles,  58  Ala.  268  ;  and  cases 
supra.  Even  a  faint  hope  of  recovery  excludes  the  declarations.  People 
V.  Gray,  61  Cal.  164  ;  Co?nm.  v.  Roberts,  108  Mass.  296.  If  hope  be  ex- 
pressed, but  afterwards  when  hope  is  gone,  declarations  are  made,  they 
are  competent.  Small  v.  Comm.,  91  Pa.  St.  304,  And  it  has  been  held 
that  declarations  made  when  there  was  no  hope  are  admissible,  though 
the  dying  person  lingered  several  days,  and  during  this  time  expressed 
some  hope.     Swisher  v.  Comtn.,  26  Gratt.  963. 

It  is  not  necessary  that  the  declarant  should  die  immediately.  In  one 
case  he  died  fourteen  days  after  making  the  statement  {yones  v.  State,  71 
Ind.  66),  and  in  another  seventeen  days.     Comm.  v.  Cooper,  5  Allen,  495. 

The  sense  of  impending  death  is  deemed  equivalent  to  the  sanction  of 
an  oath.  Hence  dying  declarations  made  by  persons  disqualified  to  act 
as  witnesses  in  court  are  not  competent,  as  e  .^.  atheists.  Donnelly  v. 
State,  26  N.  J.  L.  463  and  601 .  But  aliter  in  States  where  their  disability 
to  testify  has  been  removed.  People  v.  Chin  Mook  Sow,  51  Cal.  597  ; 
State  V.  Elliott,  45  la.  486.  So  the  declarations  of  very  young  children 
are  not  received.     Gr.  Ev.  i.  ^  157.] 

3  [People  v.  Knapp,  i  Edm.  Sel.  Cas.  177.  If  the  declarations  be  re- 
duced to  writing  by  a  bystander,  but  are  not  read  over  to  the  dying 
person,  nor  signed  by  him,  parol  evidence  of  the  declarations  is  com- 
petent  [Alison  V.  Comm.,  99  Pa,  St.  17;  State  v.  Sullivan,  51   la.  142), 


62  A  DIGEST  OF  [Part  I. 

Illustrations. 

(a)  The  question  is,  whether  A  has  murdered  B. 

B  makes  a  statement  to  the  effect  that  A  murdered  him. 

B  at  the  time  of  making  the  statement  has  no  hope  of  recovery,  though 
his  doctor  had  such  hopes,  and  B  lives  ten  days  after  making  the  state- 
ment.    The  statement  is  deemed  to  be  relevant.' 

B,  at  the  time  of  making  the  statement  (which  is  written  down),  says 
something,  which  is  taken  down  thus — "  I  make  the  above  statement 
with  the  fear  of  death  before  me,  and  with  no  hope  of  recovery."  B,  on 
the  statement  being  read  over,  corrects  this  to  "  with  no  hope  at  present 
of  my  recovery. "  B  dies  thirteen  hours  afterwards.  The  statement  is 
deemed  to  be  irrelevant. - 

(b)  The  question  is,  whether  A  administered  drugs  to  a  woman  with 
intent  to  procure  abortion.  The  woman  makes  a  statement  which  would 
have  been  admissible  had  A  been  on  his  trial  for  murder.  The  statement 
is  deemed  to  be  irrelevant.  ^ 

(<r)  The  question  is,  whether  A  murdered  B.  A  dying  declaration  by 
C  that  he  (C)  murdered  B  is  deemed  to  be  irrelevant.^ 


but  the  writing  is  not,  though  it  may  be  used  to  refresh  memory.  State 
v.  Fraunburg,  40  la.  555.  So  parol  evidence  was  received  when  the 
memorandum  was  lost.  State  v.  Patterson,  45  Vt.  308.  But  where  the 
writing  was  read  over  to  decedent  and  signed  by  him,  it  was  held  com- 
petent evidence  {Jones  v.  State,  71  Ind.  66),  though  even  where  it  was 
subscribed  and  sworn  to  by  him,  parol  evidence  has  been  received. 
Comin.  V.  Haney,  127  Mass.  455.  But  some  cases  have  held  that  the 
writing,  if  signed  by  the  decedent,  is  the  primary  evidence.  Gr.  Ev.  i. 
§  161  ;  see  Epperson  v.  State,  5  Lea  (Tenn.)  291. 

Oral  declarations  may  be  testified  to  by  any  one  who  heard  them,  and 
he  is  only  required  to  state  their  substance  (Comm.  v.  Haney,  supra; 
Starkey  v.  People,  17  111.  17)  ;  but  they  must  be  substantially  complete. 
Gr.  Ev.  i.  $  159;  State  v.  Patterson,  45  Vt.  308.] 

'  R.  V.  Mosley,  i  Moo.  97  ;  [cf.  People  v.  Grunzig,  i  Park.  Cr.  299.] 

"^  R.  V.  Jenkins^  L.  R.  I  C.  C.  R.  187;  [cf  Jackson,  v.  Comm.,  19 
Gratt.  656.] 

3  R.  v.  Hind,  Bell,  253,  following  R.  v.  Hutchinson,  2  B.  &  C.  608,  n., 
quoted  in  a  note  to  R.  v.  Mead.  [People  v.  Davis,  56  N.  Y.  95  ;  State  v. 
Harper,  35  O.  St.  78.  Aliter,  upon  a  trial  for  felonious  homicide,  caused 
by  an  attempt  to  procure  an  abortion.  State  v.  Dickinson,  41  Wis.  299  ; 
Montgomery  v.  State,  80  Ind.  338.] 

■•  Gray's  Case^  Ir.  Cir.  Rep.  76;  [see  Poteete  v.  State,  9  Baxt.  261.] 


Chap.  IV. J        THE  LAW  OF  EVIDENCE.  (>^ 

{d)   The  question  is,  whether  A  murdered  B. 

B  makes  a  statement  before  a  magistrate  on  oath,  and  makes  her  mark 
to  it,  and  the  magistrate  signs  it,  but  not  in  the  presence  of  A,  so  that  her 
statement  was  not  a  deposition  within  the  statute  then  in  force.  B,  at  the 
time  when  the  statement  was  made,  was  in  a  dying  state,  and  had  no  hojjc 
of  recovery.     The  statement  is  deemed  to  be  relevant.' 

Article  27.* 

declarations   made   in   the    course   of   business    or 
professional  duty. 

A  declaration  is  deemed  to  be  relevant  when  it  was  made 
by  the  declarant  in  the  ordinary  course  of  business,  and 
in  the    discharge  of   professional  duty,"  at  or  near  the   time 


*See  Note  XVIH. 

'  A".  V.  Woodcoci,  i  East,  P.  C.  356.  In  this  case.  Eyre,  C.  B. ,  is  said 
to  have  left  to  the  jury  the  question,  whether  the  deceased  was  not  in  fact 
under  the  apprehension  of  death  ?  i  Leach,  504.  The  case  was  decided 
in  1789.     It  is  now  settled  that  the  question  is  for  the  judge. 

^  Doe  V.  Tur/ord,  3  B.  &  Ad.  890.  [Gr.  Ev.  i.  $^  115-120  ;  Chaffee  v.  U. 
S. ,  18  Wall.  516  ;  Fisher  v.  Mayor,  67  N.  Y.  73,  77  ;  Kennedy  v.  Doyle,  10 
Allen,  161,  167  ;  Costello  v.  Crowell,  133  Mass.  352  ;  Laird  v.  Campbell, 
100  Pa.  St.  159  ;  Livingston  v.  Tyler,  14  Ct.  493  ;  State  v.  Phair,  48  Vt. 
366.  Thus  the  books  or  registers  of  a  deceased  notary  are  admissible  to 
prove  his  acts  as  to  the  presentment,  demand,  and  notice  of  non-payment 
of  negotiable  paper.  Halliday  v.  Martinett,  20  Johns.  168  ;  Porter  v. 
yudson,  I  Gray,  175;  Nicholls  v.  Webb,  8  Wheat.  326;  see  N.  Y.  Code 
Civ.  Pro.  §$  924,  962.  And  so  as  to  entries  of  a  notary's  clerk.  Gaivtry 
v.  Doane,  51  N.  Y.  84.  So  entries  made  by  merchants'  clerks,  bank 
tellers  or  messengers,  or  by  other  persons,  as  attorneys,  physicians,  etc., 
in  the  ordinary  course  of  business  and  of  professional  duty  as  part  of  the 
res  gesta  are  competent.  Leland  v.  Cameron,  31  N.  Y.  115  ;  Sheldon  v. 
Benham,  4  Hill,  129;  Perkins  v.  Augusta  Ins.  Co.,  10  Gray,  312  ;  Augusta 
V.  IVinsloui,  19  Me.  317  ;  Arms  v.  Middleton,  23  Barb.  571  ;  Hedrick  v. 
Hughes^  15  Wall.  123.  The  handwriting  of  the  deceased  person  should 
be  proved.  Chaffee  v.  U.  S.,  18  Wall.  516  ;  Chenango  Bridge  Co.  v.  Lewis, 
63  Barb.  III.  In  some  States,  such  evidence  is  also  admitted  if  the  per- 
son making  the  entries  has  become  insane  {Union  Bk.  v.  Knapp,  3  Pick. 
96),  or  has  gone  to  parts  unknown  (^V.  H.,  etc,  Co.  v,   Goodwin,  42  Ct. 


64  A  DIGEST  OP  [Part  I. 

when  the    matter  stated  occurred,    and    of    his  own    knowl- 
edge.' 

Such  declarations  are  deemed  to  be  irrelevant,  except  so  far 


230;  Reynolds  v.  Mannittg^  15  Md.  510;  see  Chaffee  v.  U.  S.,  supra),  or 
is  out  of  the  State  {Alter  v.  Bcrghaus,  8  Watts,  77).  In  New  York  death 
is  the  only  cause  thus  far  held  sufficient,  and  if  the  clerk,  etc.,  is  out  of 
the  State,  his  deposition  must  be  taken.  Brewster  v.  Doatie,  2  Hill,  537  ; 
Fisher  v.  Mayor,  6-j  N.  Y.  73  ;  but  see  Code  Civ.  Pro.  §  924.  But  it  is  a 
general  rule  that  if  he  is  alive  and  within  the  State,  he  should  be  made  a 
witness  and  authenticate  the  entries.  Ocea?t  Bk.  v.  Carll,  55  N.  Y.  440  ; 
Bartholomew  v.  Farwell,  41  Ct.  107  ;  Briggs  v.  Rafferty,  14  Gray,  525. 
As  to  what  is  a  sufficient  authentication,  see  Bank  of  Monroe  v.  Ctilver^ 
2  Hill,  531  ;  Moots  v.  State,  21  O.  St.  653  ;  Anderson  v.  Edwards,  123 
Mass.  273.  As  to  the  admissibility  of  entries  or  memoranda,  not  made  in 
the  regular  course  of  business,  see  Art.  136,  note.] 

'  [It  is  a  general  rule  in  this  country  that  entries  made  by  a  party  himself 
in  his  own  books  of  account  are  admissible  in  his  own  favor,  when  properly 
authenticated,  as  evidence  of  goods  sold  and  delivered,  of  services  ren- 
dered, and  sometimes  of  other  matters.  But  different  modes  of  authentica- 
tion are  prescribed  in  different  States.  Thus  in  New  York  it  must  be  shown 
by  the  party  offering  the  books  that  they  are  the  regular  books  of  account  ; 
that  there  had  been  regular  dealings  between  the  parties,  resulting  in  more 
than  a  single  charge  ;  that  he  kept  no  clerk  ;  that  some  of  the  articles 
charged  have  been  delivered,  or  some  items  of  service  rendered ;  and 
that  other  persons  dealing  with  him  have  settled  their  accounts  by  his 
books  and  found  them  accurate.  Vosburgh  v.  Thayer,  12  Johns.  461; 
Corning  v.  Ashley,  4  Den.  354  ;  Linnell  v.  Sutherland,  11  Wend.  568.  As 
to  the  meaning  of  "  clerk  "  under  the  rule,  see  McGoldrick  v.  Traphagen , 
88  N.  Y.  334;  as  to  a  physician's  books,  see  Knight  v.  Cunnington,  6 
Hun,  100.  But  such  entries  are  not  admissible  to  sustain  a  charge  for 
money  lent.  Low  v.  Payne,  4  N.  Y.  247.  The  fact  that  parties  are  now 
competent  witnesses  does  not  exclude  their  books  as  evidence.  Stroud  v. 
Tilton,  4  Abb.  Dec.  324. 

In  many  of  the  States  the  party's  suppletory  oath  is  required  to  authen- 
ticate his  own  book  entries,  but  there  are  diverse  rules  as  to  the  matters 
which  may  be  proved  by  such  entries.  Generally,  however,  they  are  re- 
ceived to  prove  items  of  work  done  and  goods  sold  and  delivered.  Pratt 
V.  White,  132  Mass.  477  ;  Corr  v.  Sellers,  100  Pa.  St.  169  ;  Smith  v.  Law, 
47  Ct.  431  ;  Cod/nan  v.  Caldwell,  31  Me.  560.  As  to  the  effect  of  making 
parties  competent  witnesses,  see  Nichols  v.  Haynes,  78  Pa.  St.  174.     The 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  65 

as  they  relate  to  the  matter  which  the  declarant  stated  in  the 
ordinary  course  of  his  business  or  duty. 

Illustrations. 

[a)  The  question  is,  whether  A  delivered  certain  beer  to  B. 

The  fact  that  a  deceased  drayman  ofA's,  on  the  evening  of  the  de- 
livery, made  an  entry  to  that  effect  in  a  book  kept  for  the  purpose,  in  the 
ordinary  course  of  business,  is  deemed  to  be  relevant.' 

(b)  The  question  is,  what  were  the  contents  of  a  letter  not  produced 
after  notice. 

A  copy  entered  immediately  after  the  letter  was  written,  in  a  book  kept 
for  that  purpose,  by  a  deceased  clerk,  is  deemed  to  be  relevant. ^ 

(f)  The  question  is,  whether  A  was  arrested  at  Paddington,  or  in  South 
Molton  Street. 

A  certificate  annexed  to  the  writ  by  a  deceased  sheriff's  officer,  and  re- 
turned by  him  to  the  sheriff,  is  deemed  to  be  relevant  so  far  as  it  relates 


rules  in  the  different  States  are  stated  in  the  note  to  Price  v.  Torrington, 
S.  L.  C.  (Amer.  Ed.). 

The  book  to  be  produced  in  evidence  is  the  book  of  original  entries. 
If  this  be  a  ledger,  it  will  be  competent  {Hoover  v.  Gehr,  62  Pa.  St.  136  ; 
Faxon  v.  Hollis,  13  Mass.  427)  ;  but  not  where  the  ledger  is  used  for  post- 
ing entries  originally  made  in  another  book.  I'ihnar  v.  Sckall^  3  J-  &  Sp. 
67  ;  Fitzgerald  \.  McCarty,  55  la.  702.  Sometimes  day-book  and  ledger 
are  taken  together  as  the  book  of  original  entries.  McGoldrick  v.  Traph- 
agen,  88  N.  Y.  334  ;  see  Lame  v.  Rowland,  7  Barb.  107. 

Sometimes  entries  or  memoranda  are  first  made  upon  a  slate  or  paper, 
and  afterwards  transcribed  into  the  regular  account  books.  Where  this 
is  done  on  the  same  day  or  within  two  or  three  days,  as  a  common  busi- 
ness practice,  the  books  are  generally  admitted  in  evidence.  Stroud  v. 
Tilton,  4  Abb.  Dec.  324;  McGoldrick  v.  Traphagcn,  88  N.  Y.  334; 
Hoover  v.  Gehr,  62  Pa.  St.  136  ;  Barker  v.  Haskell^  9  Cush.  218.  But 
sometimes  they  have  been  admitted  after  a  much  longer  interval.  Hall 
V.  Glidden,  39  Me.  445,  two  to  four  weeks  ;  Redlich  v.  Bauerlee,  98  111.  134, 
four  weeks.  But  in  Forsythe  v.  Norcross,  5  Watts,  432,  a  six  days'  inter- 
val was  held  too  long.  As  to  the  mode  of  proof  when  the  party  is  dead 
or  insane,  see  Hoover  v.  Gehr,  62  Pa.  St.  136  ;  Pratt  v.  White,  132  Mass. 
477;  Holbrook  V.  Gay,  6  Cush.  215.] 

'  Price  v.  Torrington,  I  S.  L.  C.  328,  7th  ed. 

"^  Pritt  v.  Fairclough,  3  Camp.  305. 


66  A  DIGEST  OF  [Part  I. 

to  the  fact  of  the  arrest;  but  irrelevant  so  far  as  it  relates  to  the  place 
where  the  arrest  took  place.' 

(d)  The  course  of  business  was  for  A,  a  workman  in  a  coal-pit,  to  tell 
B,  the  foreman,  what  coals  were  sold,  and  for  B  (who  could  not  write)  to 
get  C  to  make  entries  in  a  book  accordingly. 

The  entries  (A  and  B  being  dead)  are  deemed  to  be  irrelevant,  because 
B,  for  whom  they  were  made,  did  not  know  them  to  be  true.^ 

{e)  The  question  is,  what  is  A's  age.  A  statement  by  the  incumbent  in 
a  register  of  baptisms  that  he  was  baptized  on  a  given  day  is  deemed  to 
be  relevant.  A  statement  in  the  same  register  that  he  was  born  on  a 
given  day  is  deemed  to  be  irrelevant,  because  it  was  not  the  incumbent's 
duty  to  make  it.' 

Article  28.* 

declarations  against  interest. 

A  declaration  is  deemed  to  be  relevant  if  the  declarant  had 
peculiar  means  of  knowing  the  matter  stated,  if  he  had  no  in- 
terest to  misrepresent  it,  and  if  it  was  opposed  to  his  pecuniary 
or  proprietary  interest.*     The  whole  of  any  such  declaration. 


*  See  Note  XIX. 

*  Chambers  v.  Bernasconi,  I  C.  M.  &  R.  347  ;  see,  too,  Smith  v.  Blakey, 
L.  R.  2  Q.  B.  326. 

"  Brain  v.  Precce,  11  M.  &  W.  773  ;  [S.  P.  Gould  v.  Conway,  59  Barb. 
355  ;  A>«/  V.  Garvin,  i  Gray,  148  ;  Chaffee  v.  U.  S.,  18  Wall.  516,  543; 
Hoffman  v.  A';  Y.  C.  R.  Co.,  14  J.  &  Sp.  526,  87  N.  Y.  25.  Sometimes, 
however,  entries  made  upon  information  derived  from  others  are  com- 
petent, but  usually  corroborative  proof  is  required.  Payne  v.  Hodge,  7 
Hun,  612,  71  N.  Y.  598  ;  Harwood  v.  Mulry^  8  Gray,  250  ;  Smith  v.  Lata, 
47  Ct.  431  ;  cf.    Wilson  v.  Knapp.,  70  N.  Y.  596.] 

=•  R.  v.  Clapham,  4  C.  &  P.  29  ;  \^Kennedyy.  Doyle,  10  Allen,  161  ;  Whitch- 
er  v.  McLaughlin,  115  Mass.  167  ;  Blackburn  v.  Crazvfords,  3  Wall.  175  ; 
Weaver  v.  Lei  man,  52  Md.  708 ;  Si  tier  v.  Gehr,  105  Pa.  St.  577.  So  as 
to  a  register  of  marriages  {Maxwell  v.  Chapman,  8  Barb.  579)  ;  and  a 
hospital  record.  Town  send  v.  Pepper  ell,  99  Mass.  40  ;  see  Butler  v.  St. 
Louis  Ins.  Co.,  45  la.  93.] 

*  These  are  almost  the  exact  words  of  Bayley,  J.,  in  Gleadow  v.  Atkin, 
1  C.  &  M.  423  ;  [Gr.  Ev.  i.  ^^  147-155  ;  Livingston  v.  Arnoux,  56  N.  Y. 
507  ;   Chenango  Bridge  Co.  v.  Paige,  83  N.  Y.  178,  192  ;    Taylor  v.  Gould. 


Chap.  IV.]       THE  LAW  OF  EVIDENCE.  67 


and  of  any  other  statement  referred  to  in  it,  is  deemed  to  be 
relevant,  although  matters  may  be  stated  which  were  not 
against  the  pecuniary  or  proprietary  interest  of  the  declarant ; ' 
but  statements,  not  referred  to  in,  or  necessary  to  explain 
such  declarations,  are  not  deemed  to  be  relevant  merely  be- 
cause they  were  made  at  the  same  time  or  recorded  in  the  same 
place." 

A  declaration  may  be  against  the  pecuniary  interest  of  the 
person  who  makes  it,  if  part  of  it  charges  him  with  a  liability, 
though  other  parts  of  the  book  or  document  in  which  it  occurs 
may  discharge  him  from  such  liability  in  whole  or  in  part,  and 
(it  seems)  though  there  may  be  no  proof  other  than  the  state- 
ment itself  either  of  such  liability  or  of  its  discharge  in  whole 
or  in  part.' 

A  statement  made  by  a  declarant  holding  a  limited  interest 
in  any  property  and  opposed  to  such  interest  is  deemed  to  be 
relevant  only  as  against  those  who  claim  under  him,  and  not  as 
against  the  reversioner.^ 

An  endorsement  or  memorandum  of  a  payment  made  upon 
any  promissory  note,  bill  of  exchange,  or  other  writing,  by  or 
on  behalf  of  the  party  to  whom  such  payment  was  made,  is  not 
sufficient  proof  of  such  payment  to  take  the  case  out  of  the 
operation  of  the  Statutes  of  Limitation  ;  ^  but  any  such  declara- 
tion made  in  any  other  form  by,  or  by  the  direction  of,  the  per- 


57  Pa.  St.  152  ;  Hohensack  v.  Hallman,  17  id.  154,  158  ;  Humes  v.  O' Bryan, 
74  Ala.  64  ;  Chase  v.  Smith.  5  Vt.  556  ;  Bird  v.  Huest07i,  10  O.  St.  418. 
The  doctrine  is  also  recognized  in  dicta  in  Com?n.  v.  Denstnore,  12  Allen, 
537;  Dwight  V.  Broivn,  9  Ct.  83,  92  ;  Webster  v.  Paul,  10  O.  St.  531,536. 
The  dictum  in  Lawrence  v.  Kimball^  I  Met.  527,  is  inconsistent  with  En- 
glish cases.] 

'  ^Livingston  v.  Arnoux,  supra  ;  Ellsworth  v.  Muldoon,  15  Abb.  Pr.  (N. 
S.)  440,  448.] 

2  Illustrations  (a)  {b)  and  (<:). 

'  Illustrations  (</)  and  (<-). 

<  Illustration  (g)  ;  see  Lord  Campbell's  judgment  in  case  quoted,  p.  177. 

'  9  Geo.  IV.  c.  14,  s.  3. 


68  A  DIGEST  OF  [Part  I. 


son  to  whom  the  payment  was  made  is,  when  such  person  is 
dead,  sufficient  proof  for  the  purpose  aforesaid.' 

Any  endorsement  or  memorandum  to  the  efifect  above  men- 
tioned made  upon  any  bond  or  other  specialty  by  a  deceased 
person,  is  regarded  as  a  declaration  against  the  proprietary  in- 
terest of  the  declarant  for  the  purpose  above  mentioned,  if  it  is 
shown  to  have  been  made  at  the  time  when  it  purports  to  have 
been  made  f  but  it  is  uncertain  whether  the  date  of  such  en- 
dorsement or  memorandum  may  be  presumed  to  be  correct 
without  independent  evidence.' 

Statements  of  relevant  facts  opposed  to  any  other  than  the 
pecuniary  or  proprietary  interest  of  the  declarant  are  not 
deemed  to  be  relevant  as  such/ 


>  Bradley  v.  jfames,  13  C.  B.  822. 

2  3  &  4  Will.  IV.  c.  42,  which  is  the  Statute  of  Limitations  relating  to 
Specialties,  has  no  provision  similar  to  9  Geo.  IV.  c.  14,  s.  3.  Hence,  in 
this  case  the  ordinary  rule  is  unaltered. 

3  See  the  question  discussed  in  i  Ph.  Ev.  302-5,  and  T.  E.  ss.  625-9, 
and  see  Article  85.  [The  general  rule  in  this  country,  independently  of 
statute,  is  that  an  indorsement  on  a  bond,  bill,  note,  etc.,  made  by  the 
obligee  or  promisee,  without  the  privity  of  the  debtor,  cannot  be  admitted 
as  evidence  of  payment  in  favor  of  the  party  making  such  indorsement, 
unless  it  be  shown  that  it  was  made  at  a  time  when  its  operation  would  be 
against  the  interest  of  the  party  making  it, — that  is,  before  the  statute  has 
barred  the  claim.  The  date  of  the  indorsement  is  not  sufficient  to  show 
this,  but  there  must  be  independent  evidence  to  this  point.  But  it  is  not 
necessary  that  the  declarant  be  dead,  in  order  that  the  indorsement  be 
received  in  evidence.  Indorsements  by  the  debtor  or  with  his  consent 
and  privity,  are  competent.  Roseboom  v.  DiWrngton,  17  Johns.  182  ;  Hul- 
bert  v.  Nichol^  20  Hun,  454  ;  Shaffer  v.  Shaffer,  41  Pa.  St.  51  ;  Phillips  v, 
Mahan,  52  Mo.  197  ;  Clough  v.  McDaniel,  58  N.  H.  201  ;  Coffin  v.  Buck- 
nam,  12  Me.  471  ;  White  v.  Beaman,  85  N.  C.  3  ;  cf.  Acklens  Excr.  v.  Hick- 
man, 60  Ala.  89;  Frazer  v.  Frazer,  13  Bush,  (Ky. )  397  ;  Clark  v.  Burn, 
86  Pa.  St.  502.  In  some  States  there  are  statutes  on  the  subject,  either 
establishing  the  same  rule  as  above  stated,  or  special  rules  more  or  less 
diverse.  Mass.  Pub.  St.,  c.  197,  §  16  ;  Davidson  v.  Delano,  11  Allen,  523  ; 
Me.  Rev.  St.,  c.  81,  %  100;  Bailey  v.  Dan/orth,  53  Vt.  504;  Snyder  v. 
Winsor,  44  Mich.  140  ;  Young"  v.  Perkins,  29  Minn.  173  ;  Pears  v.  Wilson, 
23  Kan.  543.] 

*  Illustration  {h).     [Maine  v.  People,  9  Hun,  113.] 


Chap.  IV.]       THE  LAW  OF  EVIDENCE.  69 


Illttstratiotis. 
{a)  The  question  is,  whether  a  person  was  born  on  a  particular  day. 
An  entry  in  the  book  of  a  deceased  man-midwife  in  these  words  is 
deemed  to  be  relevant ;' 

''  W.  Fowden,  Junr.'s  wife, 

Filius  circa  hor.  3  post  merid.  natus  H. 

W.  Fowden,  Junr. , 

App.  22,  filius  natus, 
Wife,  ^i   6s.  \d. 
Pd.  25  Oct.,  1768." 

[b)  The  question  is,  whether  a  certain  custom  exists  in  a  part  of  a 
parish. 

The  following  entries  in  the  parish  books,  signed  by  deceased  church- 
wardens, are  deemed  to  be  relevant — 

"  It  is  our  ancient  custom  thus  to  proportion  church-lay.  The  chapelry 
of  Haworth  pay  one-fifth,  &c. " 

Followed  by — 

"  Received  of  Haworth,  who  this  year  disputed  this  our  ancient  custom, 
but  after  we  had  sued  him,  paid  it  accordingly — -^8,  ■ax\A  £\  for  costs. "^ 

(c)  The  question  is,  whether  a  gate  on  certain  land,  the  property  of 
which  is  in  dispute,  was  repaired  by  A. 

An  account  by  a  deceased  steward,  in  which  he  charges  A  with  the 
expense  of  repairing  the  gate,  is  deemed  to  be  irrelevant,  though  it  would 
have  been  deemed  to  be  relevant  if  it  had  appeared  that  A  admitted  the 
charge.  3 

{(/)  The  question  is,  whether  A  received  rent  for  certain  land. 

A  deceased  steward's  account,  charging  himself  with  the  receipt  of 
such  rent  for  A,  is  deemed  to  be  relevant,  although  the  balance  of  the 
whole  account  is  in  favor  of  the  steward.  ■• 

(^)  The  question  is,  whether  certain  repairs  were  done  at  A's  expense. 

A  bill  for  doing  them,  receipted  by  a  deceased  carpenter,  is  deemed 
(  relevant  ^     } 
to  be    \  irrelevint «  f    there  being   no  other  evidence  either  that  the  re- 
pairs were  done  or  that  the  money  was  paid. 


'  Higham  v.  Ridgway,  2  Smith,  L.  C.  318,  7th  ed. 

2  Stead  V.  Heaton,  4  T.  R.  669. 

^  Doe  V.  Beviss,  7  C.  B.  456. 

■•  Williams  v.  Graves,  8  C.  &  P.  592. 

*  jV.  v.  Heyford,  note  to  Higham  v.  Hidgway,  2  S.  L.  C.  333,  7th  ed. 

«  Doe  V.  Vo7vles,  I  Mo.  &  Ro.  261.  In  Toylor  v.  VVithams,  L.  R.  3  Ch. 
Div.  605,  Jessel,  M.  R.,  followed  R.  v.  Heyford,  and  dissented  from  Doe 
V.  Vowles. 


70  A  DIGEST  OF  [Part  I. 


(y)  The  question  is,  whether  A  (deceased)  gained  a  settlement  in  the 
parish  of  B  by  renting  a  tenement. 

A  statement  made  by  A,  whilst  in  possession  of  a  house,  that  he  had 
paid  rent  for  it,  is  deemed  to  be  relevant,  because  it  reduces  the  interest 
which  would  otherwise  be  inferred  from  the  fact  of  A's  possession.' 

{g)  The  question  is,  whether  there  is  a  right  of  common  over  a  certain 
field. 

A  statement  by  A,  a  deceased  tenant  for  a  term  of  the  land  in  ques- 
tion, that  he  had  no  such  right,  is  deemed  to  be  relevant  as  against  his 
successors  in  th^  term,  but  not  as  against  the  owner  of  the  field. ^ 

(h)  The  question  is,  whether  A  was  lawfully  married  to  B. 

A  statement  by  a  deceased  clergyman  that  he  performed  the  marriage 
under  circumstances  which  would  have  rendered  him  liable  to  a  criminal 
prosecution  is  not  deemed  to  be  relevant  as  a  statement  against  interest.^ 


Article  29. 
declarations   by   testators  as   to  contents  of  will, 

The  declarations  of  a  deceased  testator  as  to  his  testament- 
ary intentions,  and  as  to  the  contents  of  his  will,  are  deemed 
to  be  relevant 

when  his  will  has  been  lost,  and  when  there  is  a  question  as 
to  what  were  its  contents ;  "*  and 


'  R.  V.  Exeter,  L.  R.  4  Q.  B.  341. 

*  Papendick  v.  Bridgewater,  5  E.  &  B.  166. 

3  Sussex  Peerage  Case,  11  C.  &  F.  108. 

■•  [Cf.  Mercer's  Adm'r  v.  Mackin,  14  Bush,  (Ky. )  434  ;  Picke7is\.  Davis, 
134  Mass.  252  ;  In  re  yohnson's  Will,  40  Ct.  587  ;  Foster's  Appeal,  87  Pa. 
St.  67.  It  is  provided  in  New  York  by  statute  that  in  an  action  to  estab- 
lish a  lost  or  destroyed  will,  or  in  an  application  to  have  it  admitted  to 
probate,  its  provisions  must  be  proved  by  at  least  two  credible  wit- 
nesses, a  correct  copy  or  draft  being  equal  to  one  witness  (Code  Civ. 
Pro.  ^$  1865,  2621  ;  Everitt  v.  Evcritt,  41  Barb.  385)  ;  that  evidence  of  the 
testator's  declarations  as  to  its  contents  may  be  received,  see  Hatch  v. 
Sigman,  I  Demarest,  519.  But  in  certain  cases  it  is  held  that  proof  by 
one  witness  is  sufficient.     Harris  v.  Harris,  26  N.  Y.  433.]. 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  71 

when  the  question  is  whether  an  existing  will  is  genuine  or 
was  improperly  obtained  ; '  and 

when  the  question  is  whether  any  and  which  of  more  existing 
documents  than  one  constitute  his  will.' 

In  all  these  cases  it  is  immaterial  whether  the  declarations 
were  made  before  or  after  the  making  or  loss  of  the  will.' 

Article  30.* 

declarations  as  to  public  and  general  rights. 

Declarations  are  deemed  to  be  relevant  (subject  to  the  third 
condition  mentioned  in  the  next  article)  when  they  relate  to 
the  existence  of  any  public  or  general  right  or  custom  or  mat- 
ter of  public  or  general  interest.*     But  declarations  as  to  par- 


*  See  Note  XX.  Also  see  Weeks  v.  Sparke,  i  M.  &  S.  679  ;  Crease  v. 
Barrett,  i  C.  M.  &  R.  917. 

•  [See  Art.  11,  Illustration  {o)  ;  Taylor  Will  Case^  10  Abb.  Pr.  (X.  S.) 
300  ;   Crispell  \.  Dubois,  4  Barb.  393  ;  Hoppe  v.  Byers,  60  Md.  381.] 

">■  [In  New  York  it  is  essential  to  the  valid  execution  of  a  will  that  the 
testator  declare  to  the  attesting  witnesses  that  it  is  his  last  will  and  testa- 
ment (2  R.  S.*63,  s.  38).  This  is  called  the  "  publication  "  of  the  will. 
Evidence  of  such  declarations  is  accordingly  receivable  upon  a  proceed- 
ing for  the  admission  of  the  will  to  probate.  Or  his  assent  to  such  de- 
clarations, when  made  for  him  by  others  in  his  presence,  may  be  enough. 
Trustees,  etc.  v.  Calhoun,  25  N.  Y.  422  ;  Gilbert  v.  Knox,  52  N.  Y.  125. 
And  similar  evidence  may  be  received  in  other  States.] 

^Sugden\.  St.  Leonards,  L.  R.  I  P.  D.  (C.  A.)  154.  [This  is  cited  by 
the  author  as  authority  for  the  whole  article.]  In  questions  between  the 
heir  and  the  legatee  or  devisor  such  statements  would  probably  be  rele- 
vant as  admissions  by  a  privy  in  law,  estate,  or  blood.  Gould  v.  Lakes, 
L.  R.  6  P.  D.  I  ;  Doe  v.  Palmer,  16  Q.  B.  747.  The  decision  in  this  case 
^t  p.  757,  followed  by  Quick  v.  Quick,  3  Sw.  &  Tr.  442,  is  overruled  by 
Sugden  v.  St.  Leonards. 

■•  [The  general  doctrine  of  this  article  is  fully  recognized  in  this  country. 
Gr.  Ev.  i.  $$  127-140,  145  I  Ellicott  v.  Pearl,  10  Pet.  412  ;  Shuttle  v. 
Thompson,  15  Wall.  151,  163  ;  McA'innon  v.  Bliss,  21  N.  Y.  206,  218 ; 
People  V.  Velarde,  59  Cal.  457  ;  Drury  v.  Midland  R.  Co.,  127  Mass.  571  ; 
Wooster  v,  Butler,  13  Ct.  309  ;  Birmingham  v.  Anderson,  40  Pa.  St.  506. 


72  A  DIGEST  OF  [Part  I. 

ticular  facts  from  which  the  existence  of  any  such  public  or 
general  right  or  custom  or  matter  of  public  or  general  interest 
may  be  inferred,  are  deemed  to  be  irrelevant.' 

A  right  is  public  if  it  is  common  to  all  Her  Majesty's  sub- 
jects,^ and  declarations  as  to  public  rights  are  relevant  who- 
ever made  them. 

A  right  or  custom  is  general  if  it  is  common  to  any  consid- 
erable number  of  persons,  as  the  inhabitants  of  a  parish,  or 
the  tenants  of  a  manor. 

Declarations  as  to  general  rights  are  deemed  to  be  relevant 
only  when  they  were  made  by  persons  who  are  shown,  to  the 
satisfaction  of  the  judge,  or  who  appear  from  the  circumstances 
of  their  statement,  to  have  had  competent  means  of  knowl- 
edge. 

Such  declarations  may  be  made  in  any  form  and  manner. 


But  in  many  States  evidence  is  also  received  of  the  declarations  of  de- 
ceased persons  as  to  the  boundaries  of  private  estates  ;  but  the  limita- 
tions of  this  doctrine  are  different  in  different  States.  Thus  in  Massa- 
chusetts the  declarations  must  have  been  made  by  one  in  possession  of 
land  owned  by  him,  while  he  was  on  the  land  and  in  the  act  of  pointing 
out  the  boundaries.  Long\.  Colton,  ii6  Mass.  414.  But  in  some  States 
the  declarations  of  deceased  surveyors,  or  of  other  persons  having  spe- 
cial means  of  knowledge  of  the  facts  stated  are  deemed  competent. 
Kratner  v.  Goodlander,  98  Pa.  St.  366;  Himniciitt  v.  Peyton,  102  U.  S. 
333  ;  Evarts  v.  Young,  52  Vt.  329  ;  Smith  v.  Forrest,  49  N.  II.  230  ;  Kin- 
ney v.  Farnsworth,  17  Ct.  355  ;  contra,  Chapman  v.  Twitchell,  37  Me.  59  ; 
ct  Jackson  v.  McCall,  10  Johns.  377.  So  ancient  deeds,  vsills,  and  other 
solemn  instruments  are  sometimes  deemed  competent  to  prove  matters 
of  a  private  nature,  though  evidence  of  verbal  declarations  would  be  ex- 
cluded. Greenfield  \.  Camden,  74  Me.  56  ;  Oldtown  v.  Shapleigh,  33  Me. 
78  ;  Ward  v.  Oxford,  8  Pick.  476  ;  see  Boston,  etc.  Co.  v.  Hanlon,  132 
Mass.  483.] 

^[Hall  V.  Mayo,  97  Mass.  416;  S.  W.  School  Dist.  v.  Williams,  48 
Ct.  504;  Fraser  v.  Hunter,  5  Cr.C.C.  470;  and  so  as  to  declarations 
concerning   private  rights.     Id.  ;  Boston.^  etc.  Co.   v.   Hanlon,  132  Mass. 

483.] 

2  [Or  in  this  country,  to  all  the  citizens  of  the  State  :  the  "  whoever  " 
which  follows  would  apply  to  any  such  citizen,     Gr.  Ev.  i.  $  128.] 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  j^ 

Illustrations. 

(a)  The  question  is,  whether  a  road  is  public. 

A  statement  by  A  (deceased)  that  it  is  public  is  deemed  to  be  rela- 
vant.' 

A  statement  by  A  (deceased)  that  he  planted  a  willow  (still  standing) 
to  show  where  the  boundary  of  the  road  had  been  when  he  was  a  boy  is 
deemed  to  be  irrelevant.  * 

(b)  The  following  are  instances  of  the  manner  in  which  declarations  as 
to  matters  of  public  and  general  interest  may  be  made  : — They  may  be 
made  in 

Maps  prepared  by,  or  by  the  direction  of,  persons  interested  in  the 
matter ;  3 

Copies  of  Court  rolls  ;  * 

Deeds  and  leases  between  private  persons  ;  ^ 

Verdicts,  judgments,  decrees,  and  orders  of  Courts,  and  similar 
bodies'  if  final.^ 

Article  31.* 

declarations  as  to  pedigree. 

A  declaration  is  deemed  to  be  relevant  (subject  to  the  con- 
ditions hereinafter  mentioned)  if  it  relates  to  the  existence  of 
any  relationship  between  persons,  whether  living  or  dead,  or 
to  the  birth,  marriage,  or  death  of  any  person,  by  which  such 
relationship  was  constituted,  or  to  the  time  or  place  at  which 
any  such  fact  occurred,  or  to  any  fact  immediately  connected 
with  its  occurrence.* 


*  See  Note  XXL 
'  Crease  v.  Barrett,  per- Parke,  B. ,  i  C.  M.  &  R.  929. 

2  R.  V.  Bliss,  7  A.  &  E.  550. 

3  Implied  in  Hammond  v.  Bradstrect,  10  Ex.  390,  and  Pipe  v.  Fulcher, 
I  E.  «&  E.  III.  In  each  of  these  cases  the  map  was  rejected  as  not  prop- 
erly qualified.  [Cf.  McCausland  v.  Fleming,  63  Pa.  St.  36;  Smith  v. 
Forrest,  49  N.  H.  230  ;  see  p.  82,  post,  note  2.] 

<  Crease  v.  Barrett,  I  C.  M.  &  R.  928. 
6  Plaxton  V.  Dare,  10  B.  &  C.  17. 
^  Duke  of  Newcastle  v.  Broxtowe,  4  B.  &  Ad.  273. 
'  Pim  V.  Currell,  6  M.  &  W.  234,  266. 

*  Illustration  (a).  [Jackson  v.  King,  5  Cow.  237  ;  Clark  v.  Chvens,  18 
N.  Y.  434,  442  ;  Haddock  v.  B.   &-  M.  R.  Co.,  3  Allen,   298  ;  Ellicott  v, 


74  A  DIGEST  OF  [Part  I. 

Such  declarations  may  express  either  the  personal  knowledge 
of  the  declarant,  or  information  given  to  him  by  other  per- 
sons qualified  to  be  declarants,  but  not  information  collected 
by  him  from  persons  not  qualified  to  be  declarants.'  They 
may  be  made  in  any  form  and  in  any  document  or  upon  any 
thing  in  which  statements  as  to  relationship  are  commonly 
made.' 

The  conditions  above  referred  to  are  as  follows — 

(i)  Such  declarations  are  deemed  to  be  relevant  only  in 
cases  in  which  the  pedigree  to  which  they  relate  is  in  issue, 
and  not  to  cases  in  which  it  is  only  relevant  to  the  issue  ; ' 

(2)  They  must  be  made  by  a  declarant  shown  to  be  legiti- 
mately related  by  blood  to  the  person  to  whom  they  relate  ;  or 
by  the  husband  or  wife  of  such  a  person.* 


Pearl,  10  Pet.  412  ;  Amer,  Life  Ins.  Co.  v.  Rosenagle,  jj  Pa.  St.  50?  ! 
Weaver  v.  Lei??tafi,  52  Md.  708;  Van  Sickle  v.  Gibson,  40  Mich.  170; 
Cuddy  V.  Brown,  78  111.  415  ;  Morrill  v.  Foster,  33  N.  H.  379  ;  Eaton  v. 
Tallmadge,  24  Wis.  217.  The  declarant  must  be  dead.  Mooers  v.  Bunker, 
29  N.  H.  420 ;  Kobbe  v.  Price,  14  Hun,  55.  But  such  evidence  is  not 
received  in  this  country  to  show  the  place  of  birth,  etc.  Wilmington  v. 
Burlington,  4  Pick.  174;  McCarty  v.  Terry,  7  Lans,  236;  Union  v. 
Plainjield,  39  Ct.  563  ;  Greenfield  v.  Camden,  74  Me.  56  ;  Tyler  v.  Flan- 
ders, 57  N.  H.  618.  A  person's  age  may  be  a  question  of  pedigree 
(  Watson  V.  Brewster,  i  Pa.  St.  381  ;  Conn.  Ins.  Co.  v.  Schwenk,  94  U.  S. 
593.  598).  and  he  may  testify  to  his  own  age,  stating  what  he  learned 
thereon  from  deceased  parents,  etc.  Cherry  v.  State,  68  Ala.  29  ;  Hill -v. 
Eldridge,  126  Mass.  234.] 

'  Davies  v.  Lowndes,  6  M.  &  G.  527.  [yewell's  Lessee  v.  Jewell,  I  How. 
(U.  S.)  219,  231  ;  cf.  Jackson  v.  Browner,  18  Johns.  37.] 

"^  Illustration  [c). 

3  Illustration  (/;).  {Coinin.  v.  Felch,  132  Mass.  22  ;  but  see  North  Brook- 
field  \.  Warren,  16  Gray,  174.  Thus  birth,  marriage,  and  death  cannot 
be  proved  by  such  evidence  in  cases  in  which  pedigree  is  not  in  issue. 
Haines  v.  Giithrie,  13  Q.  B.  D.  818.] 

■•  Shrewsbury  Peerage  Case,  7  H.  L.  C.  26.  [The  rule  generally  stated 
in  American  cases  is  that  the  pedigree  of  a  person  may  be  shown  by  the 
declarations  of  deceased  persons  related  to  him  by  blood  or  marriage. 
Gr.  Ev.  i.  §  103  ;  Northrop  v.  Hale,  76  Me.  306  ;  Haddock  v.  B.  6-"  M.  R. 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  75 

(3)  They  must  be  made  before  the  question  in  relation  to 
which  they  are  to  be  proved  has  arisen  ;  but  they  do  not  cease 
to  be  deemed  to  be  relevant  because  they  were  made  for  the 
purpose  of  preventing  the  question  from  arising.' 

This  condition  applies  also  to  statements  as  to  public  and 
general  rights  or  customs  and  matters  of  public  and  general 
interest. 

Illustrations. 

{a)  The  question  is,  which  of  three  sons  (Fortunatus,  Stephanus,  and 
Achaicus)  born  at  a  birth  is  the  eldest. 

The  fact  that  the  father  said  that  Achaicus  was  the  youngest,  and  he 
took  their  names  from  St.  Paul's  Epistles  (see  i  Cor.  xvi.  17),  and  the 
fact  that  a  relation  present  at  the  birth  said  that  she  tied  a  string  round 
the  second  child's  arm  to  distinguish  it,  are  relevant." 

(b)  The  question  is,  whether  one  of  the  cestuis  que  vie  in  a  lease  for 
lives  is  living. 


Co.,  3  Allen,  298  ;  Conn.  Life  Ins.  Co.  v.  Schwenk,  94  U.  S.  593,  598  ;  or 
similar  expressions  are  used,  Tyler  v.  Flanders,  57  N.  H.  618,  624  ; 
Stein  V.  Boivman,  13  Pet.  209.  But  whether  all  relatives  by  marriage, 
both  near  and  remote,  are  competent  to  make  such  declarations  is  unde- 
termined. See  People  v.  Fire  Ins.  Co. ,  25  W'end.  205.  In  jfewell' s  Lessee 
V.  yeioell,  I  How.  (U.  S.)  219,  the  declarations  of  a  deceased  husband 
that  the  parents  of  his  wife  were  not  married  were  received.  So  the  de- 
clarations or  conduct  of  deceased  parents  may  be  shown  to  prove  their 
children  illegitimate  (^Haddock  v.  B.  &•  M.  R.  Co.,  3  Allen,  298  ;  Barnum 
V.  Barnum,  42  Md.  251),  or  to  prove  legitimacy  {Kenyan  v.  Ashbridge,  35 
Pa.  St.  157  ;  cf.  Alexander  v.  Chamberlain,  i  T.  &  C.  600).  But  the  re- 
lationship of  the  declarant  must  in  any  case  be  shown  by  other  evidence 
than  the  declarations  themselves.  Blackburn  v.  Crawfords,  3  Wall.  175  ; 
Thompson  v.   Woolf,  8  Or.  454  ;  Sitler  v.  Gehr,  105  Pa.  St.  577. 

The  declarations  of  deceased  neighbors,  acquaintances,  servants,  or 
other  strangers  are  not  received.  Chapman  v.  Chapman,  2  Ct.  347 ; 
Cames  v.  Crandall,  10  la.  377  ;  De  Haven  v.  De  Haven,  jy  Ind.  236  ;  and 
cases  supra  ;  contra,  Carter  v.  Montgomery ,  2  Tenn.  Ch.  216.] 

'  Berkeley  Peerage  Case,  4  Camp.  401-417.  [^People  v.  Fire  Ins.  Co., 
25  Wend.  205  ;  Stein  v.  Bowman,  13  Pet.  209 ;  Chapman  v.  Chapman,  2 
Ct.  347  ;  Northrop  v.  Hale,  76  Me.  306  ;  Comm.  v.  Felch,  132  Mass.  23  ; 
Barnum  v.  Barnum,  42  Md.  251,  304  ;  Caujolle  v.  Ferrie,  23  N.  Y.  90,  104.] 

»  Vin.  Abr.  tit.  Evidence,  T.  b.  91.     Thq  report  calls  the  son  Achicus, 


76  A  DIGEST  OF  [Part  I. 

The  fact  that  he  was  believed  in  his  family  to  be  dead  is  deemed  to  be 
irrelevant,  as  the  question  is  not  one  of  pedigree.' 

(f)  The  following  are  instances  of  the  ways  in  which  statements  as  to 
pedigree  may  be  made  :  By  family  conduct  or  correspondence  ;  in  books 
used  as  family  registers  ;  in  deeds  and  wills ;  in  inscriptions  on  tomb- 
stones, or  portraits ;  in  pedigrees,  so  far  as  they  state  the  relationship  of 
living  persons  known  to  the  compiler.'' 

Article  32.* 

evidence  given  in  former  proceeding,  when  relevant. 

Evidence  given  by  a  witness  in  a  previous  action  is  relevant 
for  the  purpose  of  proving  the  matter  stated  in  a  subsequent 
proceeding,  or  in  a  later  stage  of  the  same  proceeding,  when 
the  witness  is  dead,'  or  is  mad,*  or  so  ill  that  he  will  probably 
never  be  able  to  travel,^  or  is  kept  out  of  the  way  by  the  adverse 
party,*  or  in  civil,  but  not,  it  seems,  in  criminal,  cases,  is  out 


*  See  Note  XXII. 

>  Whittuck  V.  Walters,  4  C.  &  P.  375.  [For  cases  in  which  death  has 
been  deemed  a  question  of  pedigree,  see  Cochrane  v.  Libby,  18  Me.  39 ; 
Webb  V.  Richardson,  42  Vt.  465  ;   Clark  v.  Owe/is,  18  N.  Y.  434.] 

=  In  I  Ph.  Ev.  203-15,  and  T.  E.  ss.  583-7,  these  and  many  other  forms 
of  statement  of  the  same  sort  are  mentioned  ;  and  see  Davies  v.  Loxvndes, 
6  M.  &  G.  527.  [See  Biissom  v.  Forsyth,  32  N.  J.  Eq. ,  note.  The  fol- 
lowing are  instances  :  family  conduct  or  reputation  {Eaton  v.  Tallmadge, 
24  Wis.  217  ;  Clark  v.  Owens,  18  N.  Y.  434 ;  Harland  v.  Eastman,  107  111. 
535  ;  Watson  v.  Brewster,  i  Pa.  St.  381)  ;  family  bible  (  Weaver  v.  Leiman, 
52  Md.  708  ;  Hunt  v.  Johnson,  19  N.  Y.  279,  286)  ;  will  (Pearson  v.  Pear- 
son, 46  Cal.  610)  ;  parchment  pedigree  and  inscription  on  tombstone 
(North  Brookjicldv.  Warren,  16  Gray,  171)  ;  depositions  (A7ner.  Life  Ins. 
Co.  V.  Rosenagle,  77  Pa.  St.  507)  ;  deeds  {Scharff  v.  Keener,  64  Pa.  St. 
376  ;  Jackson  v.  Cooley,  8  Johns.  128).  The  persons  executing  such  in- 
struments must  have  been  relatives  {Si tier  \.  Gehr,  105  Pa.  St.  577);  as 
to  the  testimony  of  a  witness  who  derives  his  information  from  docu- 
pients,  etc.,  of  these  kinds,  see  Eastman  v.  Martin,  19  N.  H.  152.] 

^  Alayor  of  Doticaster  v.  Day,  3  Tau.  262, 

*  R.  v.  Eriswell,  3  T.  R.  720. 

^  R.  V.  Hogg,  6  C.  &  P.  176. 

»  /?,  V.  Scaife,  17  Q.  B.  238,  243, 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  77 

of  the  jurisdiction  of  the  Court,'  or,  perhaps,  in  civil,  but  not 
in  criminal,  tases,  when  he  cannot  be  found.' 

Provided  in  all  cases — 

(i)  That  the  person  against  whom  the  evidence  is  to  be  given 


'  Fry  V.    Wood,  I  Atk.  444 ;  R.  v.  Scai/e,  17  Q.  B.  243. 

»  Godbolt,  p.  326,  case  418 ;  F.  v.  Scai/e,  17  Q.  B.  243.  [The  death  of 
the  witness  will  in  all  States  admit  his  former  testimony.  As  to  other 
disabilities,  there  is  much  difference  of  doctrine.  Thus,  in  civil  cases, 
New  York  has  thus  far  held  only  death  sufficient  ;  absence  from  the  juris- 
diction, or  the  fact  that  the  witness  cannot  be  found,  is  not  enough.  Wil- 
bur V.  Stldc-n,  6  Cow.  162  ;  Weeks  v.  Lowerre,  8  Barb.  530.  In  Pennsyl- 
vania such  evidence  is  received,  if  the  witness  has  died,  has  become  in- 
sane, is  sick  and  unable  to  attend,  has  lost  his  memory  through  disease 
or  old  age,  is  out  of  the  jurisdiction,  or  has  become  incompetent  to  testify 
by  reason  of  the  death  of  the  opposite  party  to  the  suit.  Walbridge  v. 
Kiiippeti,  96  Pa.  St.  48.  In  Illinois,  death,  insanity,  or  the  keeping  of  the 
witness  away  by  the  adverse  party,  is  sufficient.  Stout  v.  Cook,  47  111.  530. 
Absence  from  the  jurisdiction  is  held  sufficient  in  California  (Hicks  v.  Lov- 
cll,  64  Cal.  14)  ;  in  Michigan,  if  due  diligence  has  been  used  to  find  the 
witness  (Howard  \.  Patrick,  38  Mich.  795  ;  Mat-i'ich  v.  Elsey,  47  Id.  10)  ; 
but  not  in  New  Jersey  (Berticy  v.  Mitchell,  34  N.  J.  L.  337,  and  that,  too, 
even  though  he  cannot  be  found,  Id.)  ;  nor  in  Vermont,  Illinois,  or  Iowa,  if 
there  has  been  a  lack  of  diligence  to  secure  his  attendance  or  deposition. 
Kelh\i;g\.  Secord,  42  Vt.  318  ;  Slasserv.  Burlington,  47  la,  300  ;  Cassady  v. 
Trustees,  105  111.  560.  Sickness  which  renders  the  witness  unable  to  attend 
is  sometimes  held  sufficient.  Chase  v.  Springr^ale  Mills  Co.,  75  Me.  156  ;  see 
Dcrney  v.  Mitchell,  34  N.  J.  L.  337,  341  ;  Howard  v.  Patrick,  38  Mich.  795. 

In  criminal  cases,  death  is  deemed  sufficient  (U.  S.  v.  Macomb,  5  McL. 
286;  Drown  v.  Comm.,  73  Pa.  St.  321  ;  Summons  v.  State,  5  O.  St.  325  ; 
State  V.  Fitzgerald,  63  la,  268  ;  State  v.  Able,  65  Mo.  357),  but  not  ab- 
sence from  the  jurisdiction.  U.  S.  v.  Angell,  11  F.  R.  34  ;  Brogy  v. 
Comm.,  10  Gratt.  722  ;  People  v.  A'e^oman,  5  Hill,  295  ;  Collins  v.  Comm., 
12  Bush,  271  ;  but  see  People  v.  Chung  Ah  Chue,  57  Cal.  567.  But  if 
the  witness  is  wrongfully  kept  away  by  the  defendant,  the  former  evi- 
dence has  been  received.  Reynolds  v.  U.  S.,  98  U.  S.  145  ;  State  v. 
Houser,  26  Mo.  431  ;  contra,  Bergen  v.  State,  17  111.  426.  As  to  sickness, 
see  .Mc  La  in  v.  Comm.,  99  Pa.  St.  86.  The  constitutional  provision  that 
the  defendant  shall  be  confronted  with  the  witnesses  against  him  is  gen- 
erally held  not  to  exclude  this  kind  of  evidence.  (See  all  the  cases  in  this 
paragraph  ;  People  v.  Sligh,  48  Mich.  54.) 

The  former  testimony  may  be  proved  by  any  witness  who  heard  and 


78  A  DIGEST  OF  -  [Part  I. 

had  the  right  and  opportunity  to  cross-examine  the  declarant 
when  he  was  examined  as  a  witness ; ' 

(2)  That  the  questions  in  issue  were  substantially  the  same  in 
the  first  as  in  the  second  proceeding  ; ' 

Provided  also — 

(3)  That  the  proceeding,  if  civil,  was  between  the  same  parties 
or  their  representatives  in  interest ; ' 


remembers  it,  if  he  can  state  the  substance  of  the  whole  of  it.  Woods  v. 
Keyes,  14  Allen,  236  ;  Hepler  v.  Mt.  Carmel  Bk.,  97  Pa.  St.  420;  Harri- 
son V.  Charlton,  42  la.  573  ;  Black  v.  Woodrow,  39  Md.  194  ;  Emery  v. 
Fowler,  39  Me.  326.  He  need  only  state  the  substance  of  such  testimony, 
not  its  precise  language  ;  nor  need  his  language  be  even  substantially 
the  same.  Gr.  Ev.  i.  %  163  ;  Ruch  v.  Rock  Island^  97  U.  S.  693  ;  Home  v. 
Williams,  23  Ind.  37  ;  Hepler  v.  Mt.  Cartitel  Bk.,  97  Pa.  St.  420  ;  U.  S. 
V.  Alacomb,  5  McL.  286  ;  State  v.  Able,  65  Mo.  357  ;  Summons  v.  State, 
5  O.  St.  325  ;  Whitcher  v.  Morey,  39  Vt.  459.  But  in  Massachusetts 
substantially  the  original  language  must  be  given.  Costigan  v.  Lunt,  127 
Mass.  354.  The  latest  New  York  cases  seem  to  support  the  former  rule, 
but  it  is  difficult  to  extract  a  definite  rule  from  them.  Crawford  v.  Loper., 
25  Barb.  449  ;  Mclntyre  v.  N.  Y.  C.  R.  Co.,  37  N.  Y.  287,  291  ;  Martin  v. 
Cope,  3  Abb.  Dec.  182  ;    Clark  v.   Vorce,  15  Wend.  193,  19  id.  232. 

Such  former  testimony  may  be  proved  by  a  stenographer  from  mem- 
ory {Moore  v.  Moore,  39  la.  461)  ;  by  a  juror  who  heard  it  {Hutchings  v. 
Corgan,  59  111.  70)  ;  by  an  attorney  {Earl  v.  Tupper,  45  Vt.  275  ;  Costigan 
v.  Limt,  127  Mass.  354  ;  who  may  refresh  his  recollection  by  his  minutes. 
Id.)  ;  by  the  judge's  minutes,  duly  authenticated  by  him  as  to  complete- 
ness and  accuracy  {Martin  v.  Cope,  3  Abb.  Dec.  182 ;  Whitcher  v. 
Morey,  39  Vt.  459)  ;  by  the  minutes  of  stenographers,  counsel,  masters 
in  chancery,  etc.  {Stewart  v.  First  Nat.  Bk.,  43  Mich.  257;  Rhine  v. 
Robinson,  27  Pa.  St.  30  ;  Clark  v.  Vorce,  15  Wend.  193  ;  Yale  v.  Comstock, 
112  Mass.  267)  ;  and  by  other  like  methods. 

These  rules  apply  also  to  the  former  testimony  of  a  deceased  party.  But 
by  statute  in  some  States,  if  this  is  not  proved  on  the  second  trial,  the 
surviving  party  cannot  be  a  witness  to  testify  against  the  decedent's  rep- 
resentatives. Emerso?!.  v.  Bleakley,  2  Abb.  Dec.  22  ;  Bradley  v.  Mirick, 
91  N.  Y.  293;  Stewart  v.  First  Nat.  Bk.,  43  Mich.  257;  see  Blair  v. 
Ellsworth,  55  Vt.  415. 

Former  testimony  given  before  arbitrators  may  be  proved.  Walbridge 
V.  Knippen,  96  Pa.  St.  48  ;  Bailey  v.  Woods,  17  N.  H.  365  ;  contra,  Jessup 
V.  Cook,  6  N.  J.  L.  529  ;  cf.  Jackson  v.  Bailey,  2  Johns.  17.] 

'  Doe  v.  Tatkam,  I  A.  &  E.  319  ;  Doe  v.  Derby,  i  A.  &  E.  783,  785,  789. 
\Osborn  v,  Pell,  5  Den.  370;  Jackson  v.  Crissey,  3  Wend.  251 ;  CAas(  v. 


Chap,  i v.]       THE  LAW  OF  EVIDENCE.  79 

(4)  That,  in  criminal  cases,  the  same  person  is  accused  upon 
the  same  facts.' 

If  evidence  is  reduced  to  the  form  of  a  deposition,  the  pro- 
visions of  article  90  apply  to  the  proof  of  the  fact  that  it  was 
given.  ^ 

The  conditions  under  which  depositions  may  be  used  as  evi- 
dence are  stated  in  articles  140-142. 

SECTION    II. 

STATEMENTS    IN    BOOKS,    DOCUMENTS,    AND 
RECORDS,    WHEN  RELEVANT 

Article  33. 

recitals  of  public  facts  in  statutes  and  proclama- 
TIONS.' 

When  any  act  of  state  or  any  fact  of  a  public  nature  is  in 
issue  or  is,  or  is  deemed  to  be,  relevant  to  the  issue,  any  state- 
ment of  it  made  in  a  recital  contained  in  any  public  Act  of 


Springz'alt  Mills  Co.,  75  Me.  156  ;  Walbridge  v.  Knippeti,  96  Pa.  St. 
48,  51,  and  cases  supra.  It  is  enough  that  the  opportunity  for  cross- 
examination  exist,  though  it  is  not  exercised.  Bradley  v.  Mirick,  91 
N.  Y.  293.  Privies  in  blood,  in  law,  or  in  estate,  are  "representatives 
in  interest"  within  this  rule.  Jackson  v.  Laiuson,  15  Johns.  539;  Yale 
v.  Comstock,  112  Mass.  267.  But  the  plaintiffs  in  one  suit  may  be  de- 
fendants in  the  other.  (Id.)  But  the  testimony  of  the  deceased  witness 
is  inadmissible,  unless  he  would,  if  living,  have  been  a  competent  wit- 
ness in  the  second  suit.  Eaton  v.  Alger,  47  N.  Y.  345.  The  testi- 
mony of  a  witness  given  at  a  coroner's  inquest  is  not  admissible  in  an 
action  to  recover  damages  for  causing  the  death  of  the  deceased,  though 
the  witness  has  since  died.  Cook  v.  N.  Y.  C.  R.  Co.,  5  Lans.  401.  The 
inquest  is  not  an  action  or  judicial  proceeding  between  the  parties.] 

'  Beeston  s  Case,  Dears.  405.     [See  the  criminal  cases  cited  in  note  2  on 
page  77,  ante.] 

2  [See  Pliil.  etc.  R.  Co.  v.  Howard,  13  How.  (U.  S.)  307  ;  Clhisc  v.  Spring- 
vale  Mills  Co.^  75  Me.  156.] 

3  [This  article  may  be  adapted  to  American  law  by  making  it  read  as 
follows  :  When  any  act  of  state  or  any  fact  of  a  public  nature  is  in  issue, 


8o  A  DIGEST  OF  [Part  I 

Parliament,  or  in  any  Royal  proclamation  or  speech  of  the  Sov- 
ereign in  opening  Parliament,  or  in  any  address  to  the  Crown 
of  either  House  of  Parliament,  is  deemed  to  be  a  relevant 
fact.i 

Article  34. 

relevancy  of  entry  in  public   record   made   in  per- 
formance of  duty. 

An  entry  in  any  record,  official  book,  or  register  kept  in 
any  of  Her  Majesty's  dominions  ^  or  at  sea,  or  in  any  foreign 
country,  stating,  for  the  purpose  of  being  referred  to  by  the 
public,  a  fact  in  issue  or  relevant  or  deemed  to  be  relevant 
thereto,  and  made  in  proper  time  by  any  person  in  the  dis- 
charge of  any  duty  imposed  upon  him  by  the  law  of  the  place 
in  which  such  record,  book,  or  register  is  kept,  is  itself  deemed 
to  be  a  relevant  fact.^ 


or  is,  or  is  deemed  to  be,  relevant  to  the  issue,  any  statement  of  it  made 
in  a  recital  contained  in  any  public  statute,  or  in  any  proclamation  of  the 
Executive,  or  in  state  papers  communicated  by  the  Executive  to  the 
Legislature,  or  published  under  public  authority,  or  in  legislative  jour- 
nals or  resolutions,  is  deemed  to  be  a  relevant  fact.  Gr.  Ev.  i.  §  491  ; 
McKinnon  v.  Bliss,  21  N.  Y.  206  ;  Radcliff  v.  Ins.  Co. ,  7  Johns.  38,  51  ; 
Root  v.  King,  7  Cow.  613  ;  Spang-ler  v.  Jacoby,  14  111.  297  ;  Whiton  v. 
Albany,  etc.  Ins.  Go's.,  109  Mass.  24,  and  cases  cited  ;  Hanson  v.  South 
Scituate,  1 15  Mass.  336;  see  Armstrongs.  U.  S.,  13  Wall.  154.  So  of  re- 
citals in  the  official  precept  of  a  governor.  Comm.  v.  Hall.,  9  Gray,  262. 
As  to  the  effect  of  recitals  in  private  statutes,  see  McKinnon  v.  Bliss, 
supra;  in  resolutions  of  a  common  council  of  a  city,  Ireland  \.  Rochester , 
51  Barb.  414,  428.] 

'  R.  V.  Franckliii,  17  S.  T.  636  ;  R.  v.  Sutton,  4  M.  &  S.  532. 

2  [For  this  country  this  should  read,  "  in  any  State  or  Territory  or  the 
District  of  Columbia. "] 

'  Sturla  V.  Freccia,  L.  R.  5  App.  Ca  623  ;  see  especially  p.  633-4 
and  643-4.  T.  E.  (from  Greenleaf)  ss.  1429,  1432.  See  also  Queen's 
Proctor  V.  Fry,  L.  R.  4  P.  D.  230.  [Gr.  Ev.  i.  ^^  483-485,  493-495  ; 
Evanston  v.  Gunn,  99  U.  S.  660;  Gurney  v.  Ho7i<e,  9  Gray,  404;  Pells  v. 
Webquish,  129  Mass.  469 ;  Gait  v.  Galhnvay,  4  Pet.  332  ;  Bissell  v.  Hamb- 


Chap.  IV.]       THE  LAW  OF  EVIDENCE.  8i 

Article  35. 

relevancy  of  statements  in  works  of  history,  maps, 
charts,  and  plans. 

Statements  as  to  matters  of  general  public  history  made  irt 
accredited  historical  books  are  deemed  to  be  relevant  when 
the  occurrence  of  any  such  matter  is  in  issue  or  is,  or  is 
deemed  to  be,  relevant  to  the  issue  ;  but  statements  in  such 
works  as  to  private  rights  or  customs  are  deemed  to  be  ir- 
relevant.' 

[Submitted)  Statements  of  facts  in  issue  or  relevant  or 
deemed  to  be  relevant  to  the  issue  made  in  published  maps 
or  charts  generally  offered  for  public  sale  as  to  matters  of 
public  notoriety,  such  as  the  relative  position  of  towns  and 
countries,  and  such  as  are  usually  represented  or  stated  in 
such  maps  or  charts,  are  themselves  deemed  to  be  relevant 


lin,  6  Duer,  512  ;  People  v.  Zeyst,  23  N.  Y.  140 ;  see  Art.  27,  Illustration 
(f),  ante. 

The  books  of  a  private  corporation  are  of  the  nature  of  public  books  as 
between  the  members  (Gr.  Ev.  i.  %  493),  and  are  competent  to  show  the 
acts  of  the  corporation,  when  duly  kept  in  the  regular  course  of  business. 
Hubbellw.  Meigs,  50  N.  Y  480;  Turnpike  Co.  v.  M'Kean,  10  Johns.  154; 
Diehl  V.  Adams  Co.  Ins.  Co.,  58  Pa.  St.  443.  So  they  are  evidence  in 
favor  of  the  corporation,  to  show  that  it  was  properly  organized.  Mc Far- 
Ian  V.  Triton  Ins.  Co. ,  4  Den.  392  ;  see  Angell  &:  Ames  on  Corp.  ^§  679, 
681.  But  they  are  not  generally  competent  evidence  in  favor  of  the  cor- 
poration against  a  stranger.  Graville  v.  jV.  Y.  C.  R.  Co.,  34  Hun,  224  ; 
Railroad  Co.  v.  Cunnington,  39  O.  St.  327  ;  Chases.  Sycamore,  etc.  R.  Co., 
38  111.  215. 

As  to  entries  in  other  books  of  a  private  or  quasi-o{^c\vi\  character,  see 
Art.  27,  ante.'\ 

'  See  cases  in  2  Ph.  Ev.  155-6.  [McKinnon  v.  Bliss,  21  N.  Y.  206,  216  ; 
Dogardus  v.  Trinity  Church,  4  Sandf.  Ch.  633  ;  Crill  v.  Rome,  47  How. 
T'r.  400 ;  Morris  v.  Harmer,  7  Pet.  554  ;  State  v.  Wagner,  61  Me.  178, 
188  ;  Spalding  v.  Hedges,  2  Pa.  St.  240,  243.  These  cases  favor  the  view- 
that  if  the  author  is  living,  he  should  be  called  as  a  witness  to  be  exam- 
ined as  to  the  sources  and  accuracy  of  his  knowledge.  Mere  local  his- 
tories are  not  admitted  in  evidence.] 


82  A  DIGEST  OF  [Part  I. 

facts ; '  but  such  statements  are  irrelevant  if  they  relate  to 
matters  of  private  concern,  or  matters  not  likely  to  be  accu- 
rately stated  in  such  documents.^ 


'  In  R.  V.  Orion,  maps  of  Australia  were  given  in  evidence  to  show  the 
situation  of  various  places  at  which  the  defendant  said  he  had  lived. 

2  E.g.,  a  line  in  a  tithe  commutation  map  purporting  to  denote  the 
boundaries  of  A's  property  is  irrelevant  in  a  question  between  A  and  B 
as  to  the  position  of  the  boundaries  :    Wilbei-force  v.  Hearfield,  L.  R.  s 

Ch.  D.  709,  and  see  Hatnmond  v. ,  10  Ex.  390.     [As  a  general  rule, 

maps,  surveys,  and  plans  of  land  are  not  competent  evidence,  unless 
their  accuracy  is  shown  by  other  evidence  in  the  case  {Johnston  v.  yoncs, 
I  Black,  209;  Whitehotise  v.  Bickford,  9  Foster,  471),  as  e.g.,  by  the 
testimony  of  the  surveyors  who  prepared  them.  Curtiss  v.  Ayrault, 
5  T.  &  C.  611.  But  a  map  of  public  land,  made  by  a  public  surveyor, 
and  duly  certified  and  filed  in  a  public  ofifice,  as  prescribed  by  statute,  is 
admissible  per  se  {People  v.  Dcnison,  17  Wend.  312),  and  ancient  maps 
are  admissible /t'r  se  to  show  matters  of  public  and  general  right.  Alis- 
souri  v.  Kevtucky,  11  Wall.  395  ;  McCausland  v.  Fleming,  63  Pa.  St.  36  ; 
see  Art.  30,  ante.  Bufan  ancient  map  of  partition,  showing  the  division 
of  land  among  private  owners,  is  not  evidence  of  title,  jfackson  v. 
Witter,  2  Johns.  180. 

Where  a  plan  or  map  of  land  is  prepared,  and  is  referred  to  in  making 
conveyances  of  such  land,  it  is  evidence  to  show  boundary  or  location, 
or  to  explain  the  contract  {Clark  v.  Life  Ins.  Co.,  64  N.  Y.  33  ;  Kingslatid 
v.  Chittenden,  6  Lans.  15  ;  Crawford  v.  Loper,  25  Barb.  449).  So  in  dedi- 
cating land  to  the  public.  Derby  v.  Ailing,  40  Ct.  410.  But  if  made  by 
a  stranger  without  authority,  it  cannot  be  received  to  vary  or  contradict 
a  title  under  a  previous  deed.  Marble  v.  IMcMinn,  57  Barb.  610 ;  cf.  Jack- 
son V.  Frost,  5  Cow.  346.  But  sometimes  maps,  plans,  etc.,  are  admis- 
sible even  between  strangers.  Boston  Water  Power  Co.  v.  Hanlon,  132 
Mass.  483.  And  sometimes  maps  are  admissible  by  statute,  as  maps  of 
the  public  canals  in  New  York.      Carpcttter  v.  Cohocs,  81  N.  Y.  21. 

Some  other  rules  as  to  the  admissibility  of  books,  papers,  etc.,  may 
here  be  noticed.  Thus  it  is  generally  held  that  a  medical  or  other  scien- 
tific treatise  is  not  competent  evidence  to  prove  the  truth  of  matters 
stated  therein  {Comm.  v.  Sturtivant,  117  Mass.  122;  Harris  v.  Panama 
J?.  Co.,  3  Bos.  7  ;  Lithographing  Co.  v.  Kerting,  107  111.  344  ;  People  v. 
Hall,  48  Mich.  482  ;  Boyle  v.  State,  57  Wis.  472  ;  contra.  Bales  v.  State,  63 
Ala.  30  ;  Brodhead  v.  Wiltsee,  35  la.  429  [by  statute]) ;  nor  can  such  books 
be  read  in  argument  to  the  jury  (  Washburn  v.  Cuddihy,  8  Gray,  430  ;  Boyle 
V.  State,  supra  ;  People  v.   Wheeler,  60  Cal.  581  ;  contra.  State  v.  Hoyt,  46 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  83 

Articles  36,  yj,  38. 
entries  in  bankers'  books.* 

Article  39.* 

"  judgment." 

The  word  "judgment"  in  articles  40-47  means  any  final 
judgment,  order,  or  decree  of  any  Court. 


*  See  Note  XXIIL 
Ct.  330),  nor  given  in  evidence  to  sustain  or  contradict  the  opinion  of  a 
witness.  Davis  v.  State,  38  Md.  15  ;  Knoll  v.  State,  55  Wis.  249.  But 
such  a  book  may  be  read  to  discredit  a  witness  when  he  has  referred  to 
it  as  supporting  his  statements.  Pintjcy  v.  Caliill,  48  Mich.  584  ;  Ripon 
V.  Bittell,  30  Wis.  614.  And  standard  treatises  have  been  allowed  to  be 
read  to  an  expert  witness  on  cross-examination  to  test  his  knowledge. 
Conn.  Ins.  Co.  v.  Ellis,  89  111.  516.  An  engraving  in  a  medical  book  can- 
not be  shown  to  the  jury.  Ordway  v.  Haynes,  50  N.  H.  159.  So  counsel 
ought  not  in  general  to  read  extracts  from  other  books  and  papers. 
Baldwin  v.  Bricker,  86  Ind.  221  ;  as  to  reading  law  books,  see  State  v. 
Hopkins^  56  Vt.  250. 

A  price  current  list,  appearing  from  extrinsic  evidence  to  be  reliable, 
is  competent  to  prove  market  value  [Cliquot's  Champagne,  3  Wall.  114; 
Whelan  v.  Lynch,  60  N.  Y.  469  ;  see  Whitney  v.  Thacher,  117  Mass.  523  ; 
Peter  v.  Thickstun,  51  Mich.  589)  ;  the  Northampton  tables  to  show  du- 
ration of  life  {Schell  v.  Plumb,  595  N.  Y.  52  ;  Coates  v.  Burlington,  etc. 
N.  Co.,  62  la.  486)  ;  an  almanac  to  show  time  of  sunrise,  etc.  State  v. 
Morris,  47  Ct.  179  ;  Munshower  v.  State,  55  Md.  11.  So  market  reports 
have  been  received  {Sisson  v.  Cleveland,  etc.  R.  Co.,  14  Mich.  489),  and 
a  weather  record  kept  at  a  State  asylum.  De  Armond  v.  iXeasmith,  32 
Mich.  231.  But  a  gazetteer  is  not  admissible  to  prove  relative  distances 
of  places  {Spalding  V.  Hedges,  2  Pa.  St.  240),  nor  are  law  reports  of  cases 
formerly  decided  competent  to  prove  the  facts  of  those  cases  (Mackay  v. 
f.aston,  19  Wall.  619),  nor  to  prove  a  local  custom  of  trade.  Iron  Cliffs 
Co.  v.  Buhl,  42  Mich.  86.] 

'  [Articles  36,  37,  and  38  state  the  provisions  of  special  English  stat- 
utes relating  to  entries  in  bankers'  books.  As  they  are  peculiar  to  Eng- 
lish law,  they  are  not  retained  here  in  the  text,  but  will  be  found  in  the 
appendix.  See  Note  XLIX.  As  to  the  admissibility  of  corporation  books 
in  this  country,  see  Articles  27  and  34,  ante,  and  notes.] 


A  DIGEST  OF  [Part  I. 


The  provisions  of  articles  40-45  inclusive,  are  all  subject  to 
the  provisions  of  article  46. 

Article  40. 
all  judgments  conclusive  proof  of  their  legal 

EFFECT. 

All  judgments  whatever  are  conclusive  proof  as  against  all 
persons  of  the  existence  of  that  state  of  things  which  they  ac- 
tually effect  when  the  existence  of  the  state  of  things  so  ef- 
fected is  a  fact  in  issue  or  is,  or  is  deemed  to  be,  relevant  to  the 
issue.'  The  existence  of  the  judgment  effecting  it  may  be 
proved  in  the  manner  prescribed  in  Part  II. 

Illustrations. 

(a)  The  question  is,  whether  A  has  been  damaged  by  the  negligence 
of  his  servant  B  in  injuring  C's  horse. 

A  judgment  in  an  action,  in  which  C  recovered  damages  against  A,  is 
conclusive  proof  as  against  B,  that  C  did  recover  damages  against  A  in 
that  action. 2 

{fi)  The  question  is,  whether  A,  a  shipowner,  is  entitled  to  recover  as 
for  a  loss  by  capture  against  B,  an  underwriter. 

A  judgment  of  a  competent  French  prize  court  condemning  the  ship 
and  cargo  as  prize,  is  conclusive  proof  that  the  ship  and  cargo  were  lost 
to  A  by  capture.  3 

(f)  The  question  is,  whether  A  can  recover  damages  from  B  for  a  ma- 
licious prosecution. 


>  [Gr.  Ev.  i.  §§  527,  538,  539 ;  Dorrell  v.  State,  83  Md.  357  ;  Chamber- 
lain V.  Carlisle,  26  N.  H.  540;  Wadswortk  v.  Sharps  teen,  8  N.  Y.  388; 
Murray  v.  Deyo,  10  Hun,  3  ;  see  Smith  v.  Chapin,  31  Ct.  530  ;  Coodnow  v. 
Smith,  97  Mass.  69.] 

2  Green  v.  New  River  Company,  4  T.  R.  590.  See  article  44,  Illustra- 
tion [a).  [See  Kip  v.  Brigham,  7  Johns.  168  ;  Dubois  v.  Hermance,  56 
N.  Y.  673  ;  Masser  v.  Strickland,  17  S.  &  R.  354  ;  Tyler  v.  Ulmer,  12 
Mass.  166;  and/^5/,  Art.  44,  Illustration  (ab').'\ 

3  Involved  in  Geyer  v.  Aguilar,  7  T.  R.  68r  ;  [cf  Rose  v.  Hifnely,  4 
Cr.  241.] 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  85 


The  judgment  of  a  Court  by  which  A  was  acquitted  is  conclusive 
proof  that  A  was  acquitted  by  that  Court.' 

(d)  A,  as  executor  to  B,  sues  C  for  a  debt  due  from  C  to  B. 

The  grant  of  probate  to  A  is  conclusive  proof  as  against  C,  that  A  is 
B's  executor.* 

(e)  A  is  deprived  of  his  living  by  the  sentence  of  an  ecclesiastical 
court. 

Tne  sentence  is  conclusive  proof  of  the  fact  of  deprivation  in  all 
cases.' 

(_/)  A  and  B  are  divorced  a  vinculo  matrimonii  by  a  sentence  of  the 
Divorce  Court. 

The  sentence  is  conclusive  proof  of  the  divorce  in  all  cases.'' 

{g)  [The  question  is  whether  A,  an  alien  born,  is  a  citizen  of  the  Uni- 
:ed  States. 

The  record  of  a  judgment  of  a  competent  Court  admitting  him  to  be- 


'  Leggatt  v.  TolUrvey,  14  Ex.  301  ;  and  see  Caddy  v.  Barlow,  i  Man. 
&  Ry.  277 ;  [see  S^iyles  v.  Briggs,  4  Met.  421 ;  Burt  v.  Place,  4  Wend. 

S9I-] 

2  Allan  v.  Dundas,  3  T.  R.  125-130.  In  this  case  the  will  to  which  pro- 
bate had  been  obtained  was  forged.  [^Kelly  v.  West,  80  N.  Y.  139  ;  N.  Y. 
Code  Civ.  Pro.  §  2591  ;  Day  v.  Floyd,  130  Mass.  488  ;  Mutual  Ins.  Co.  v. 
Tisdale,  91  U.  S.  238,  243  ;  Steen  v.  Bennett,  24  Vt.  303  ;  Quidorfs  Adm'r. 
V.  Pergeaux.,  3  C.  E.  Gr.  472  ;  so  as  to  guardian,  Farrar  v.  Olmstead,  24  Vt. 
123  ;  or  receiver,  Whittlesey  v.  Frantz,  74  N.  Y.  456.  But  the  grant  of  ad- 
ministration upon  the  estate  of  a  living  person  is  wholly  void  for  lack  of 
jurisdiction.  Stevenson  v.  Superior  Ct.,  62  Cal.  60  ;  Jochumsen  v.  Suf- 
folk Sav.   Bk.,  3  Allen,  87  ;  Melia  v.  Simmons,  45  Wis.   334  ;  Devlin  v. 

Comm.,  loi  Pa.  St.  273  ;  Lavin  v.  Emigrant  Sav.  Bk.,  18  Blatch.  I,  36. 
But  in  New  York  by  statute,  the  determination  by  the  surrogate  of  the 
fact  of  death  is  deemed  conclusive,  so  far  as  to  render  the  acts  of  the  ad- 
ministrator valid  until  his  authority  is  revoked.  Roderigas  v.  Fast  River 
Sav.  Inst.,  63  N.  Y.  460  ;  but  this  power  of  the  surrogate  does  not  extend 
to  his  clerk,  S.  C.  76  N.  Y.  316.] 

3  Judgment  of  Lord  Holt  in  Philips  v.  Bury,  2  T.  R.  346,  351  ;  [cf. 
Bouldin  v.  Alexa?tder,  15  Wall.  131.] 

••  Assumed  in  Needham  v.  Bremner,  L.  R.  i  C.  P.  582.  [Hood  v.  Hood, 
no  Mass.  463  ;  Burlen  v.  Shannon,  3  Gray,  387  ;  Hunt  v.  Hunt,  72  N.  Y. 
217  ;  as  to  impeaching  the  judgment  for  lack  of  jurisdiction,  see  People  v. 
Baker,  76  N.  Y.  78.  J 


86  A  DIGEST  OF  [Part  1. 

come  a  citizen  and  reciting  the  facts  which  entitled  him  to  such  judgment 
is  conclusive  proof  of  his  citizenship.] ' 

Article  41. 

judgments  conclusive  as  between  parties  and  privies 
of  facts  forming  ground  of  judgment. 

Every  judgment  is  conclusive  proof  as  against  parties  and 
privies  of  facts  directly  in  issue  in  the  case,  actually  decided 
by  the  Court,"  and  appearing  from  the  judgment  itself  to  be  the 


'  [McCarthy  v.  Marsh,  5  N.  Y.  263  ;  Mutual  Ins.  Co.  v.  Tisdale,  91  U. 
S.  238,  245  ;  People  v.  McGowan,  77  111.  644  ;  State  v.  Macdoiiald,  24  Minn. 
48.] 

"^  [Gr.  Ev.  i.  §  528  et  seg.  ;  Cagger  v.  Lansing^  64  N.  Y.  417  ;  Leavitt 
V.  Wolcott,  95  N.  Y.  219  ;  Bickford  v.  Cooper^  41  Pa.  St.  142  ;  White  v. 
Chase,  128  Mass.  i^S.  But  it  is  generally  held  in  this  country  that  a 
judgment  is  conclusive  between  parties  and  privies  as  to  facts  actually 
decided,  whether  these  do  or  do  not  appear  upon  the  record ;  such  as  do 
not  may  be  shown  by  parol  evidence  to  have  been  litigated  and  de- 
termined. Campbell  v.  Rankhi,  99  U.  S.  261  ;  Foye  v.  Patch,  132  Mass. 
105,  III  ;  Smith  v.  Smith,  79  N.  Y.  634  ;  Stipples  v.  Ca7t7707i.,  44  Ct.  424; 
Roberts  v.  Orr,  56  Pa.  St.  176  ;  Lander  v.  Arno,  65  Me.  26  ;  Sanderson  v. 
Peabody,  58  N.  H.  116;  see  Art.  44,  Illustration  {cc).  But  such  evidence 
must  not  contradict  the  record.  FoUansbcev.  Walker,  74. Pa.  St.  306  ;  Mc- 
Knight  V.  Dez'lin,  52  N.  Y.399. 

A  judgment  is  said  to  be  conclusive  not  only  as  to  matters  which  are, 
but  also  as  to  those  which  might  have  been  litigated  and  determined  in  the 
action.  yorJ<in  v.  Van  Epps,  85  N.  Y.  427  ;  Petershine  v.  Thomas,  28  O. 
St.  596  ;  Par?tell  v.  Hahn,  61  Cal.  131  ;  Bates  v.  Spooner,  45  Ind.  489. 
Thus,  if  part  of  a  single  cause  of  action  be  sued  on  and  judgment  recov- 
ered, it  bnrs  an  action  for  the  residue.  Secor  v.  Sturgis,  16  N.  Y.  548  ; 
Baird  v.  U.  S. ,  96  U.  S.  430  ;  Warren  v.  Comings,  6  Cush.  103  ;  Bruns- 
den  V.  Humphrey,  14  Q.  B.  D.  141  ;  see  Illustration  {c).  And  if  a  defen- 
dant fails  to  set  up  defences  which  he  might  and  should  maintain,  and 
judgment  goes  against  him,  this  will  bar  any  action  by  him  based  on 
such  grounds  of  defence  (see  Illustrations  (/)  and  {g)  \  White  v.  Mer- 
rill, 8  N.  Y.  352  ;  Homer  v.  Fish,  i  Pick.  435) ;  so  this  prior  judgment 
will  bar  the  use  of  such  defences  in  a  subsequent  action  between  the  same 
parties  upon  the  same  cause  of  action,  though  it  will  only  conclude  as 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  87 

ground  on  which  it  was  based  ;    unless  evidence  was  admitted 
in  the  action  in  which  the  judgment  was  deUvered  which  is  ex- 


to  the  matters  actually  in  issue,  if  the  subsequent  cause  of  action  be  dif- 
ferent. Cro7nwell  v.  Sac,  94  U.  S.  351  ;  Foye  v.  Patch,  132  Mass.  105. 
But  matters  of  set-off  and  recoupment  (and  sometimes  other  matters), 
though  not  used  as  defences  inactions  where  they  might  be  so  used,  may 
still  be  sued  on  independently.  Brown  v.  Gallaudct,  80  N.  Y.  413  ;  Gilles- 
pie V.  Torrance^  25  N.  Y.  309  ;  Malloney  v.  Horan,  49  N.  Y.  ill  ;  Burnett 
V.  Smit/i,  4  Gray,  50  ;  Vufes  v.  Fassett,  5  Den.  21  ;  see  Barker  v.  Cleveland, 
19  Mich.  230. 

Some  additional  rules  of  importance  concerning  judgments  are  the  fol- 
lowing :  (a)  A  judgment,  in  order  to  conclude  parties  and  privies,  must 
be  a  final  decision  on  the  merits.  Gr.  Ev.  i.  §$  529,  530  ;  Webb  v.  Biicka- 
leT.v,  82  N.  Y.  555.  Thus  a  judgment  of  nonsuit  or  of  dismissal  of  the 
complaint  in  an  action  at  law  does  not  bar  another  action  {Smith  v.  Afc- 
Neal,  109  U.  S.  426  ;  Wheeler  v.  Ruckman,  51  N.  Y.  391),  though  a  dis- 
missal in  equity  on  the  merits  will  have  that  effect  [Diirant  v.  Essex 
Co.,  7  Wall.  107  ;  aliter,  if  not  on  the  merits,  Hughes  v.  U.  6'.,  4  id.  232; 
see  Ogsbury  v.  La  Farge,  2  N.  Y.  113  ;  N.  Y.  Code  Civ.  Pro.  %  1209). 
So  if  there  be  a  discontinuance  {Audubon  v.  Excelsior  Ins.  Co.,  27  N.  Y. 
216),  or  the  action  be  prematurely  brought  {Quackenbush  v.  Ehle,  5  Barb. 
469),  or  a  plea  in  abatement  be  sustained  ( I'aughan  v.  O'Brien,  57  Barb. 
491),  judgment  for  such  causes  is  no  bar.  A  verdict  without  judgment 
entered  is  no  bar.  Smith  v.  AIcCool,  16  Wall.  560.  {b)  Judgment  on 
demurrer,  rendered  on  the  merits,  is  a  bar  to  another  action  on  substan- 
tially the  same  complaint  ;  but  not  to  an  action  on  a  new  complaint  setting 
forth  the  facts  of  the  same  transaction  so  as  to  present  a  different  cause 
of  action.  Alley  v.  Nott,  iii  U.  S.  472  ;  People  v.  Stephens,  51  How.  Pr. 
235  ;  Stowell  V.  Chamberlain,  60  N.  Y.  272  ;  Gould  v.  R.  Co.  91  U.  S. 
533 ;  Los  Angeles  v.  Melius,  59  Cal.  444.  (c)  Judgment  by  confession 
or  default  is  a  bar.  Robinson  v.  A/arks,  19  Hun,  325  ;  Jarvis  v.  Driggs, 
69  N.  Y.  143  ;  Spring  Run  Co.  v.  Tosier,  102  Pa.  St.  342.  (d)  An  inter- 
locutory order  is  not  conclusive  between  parties  (  Webb  v.  Buckalew,  82 
N.  Y.  555  ;  Riggs  v.  Pursell,  74  N.  Y.  380  ;  Spitlcy  v.  Frost,  15  F.  R. 
299)  ;  aliter  as  to  final  orders  on  the  merits  in  special  proceedings,  where 
there  are  opposing  parties  who  have  full  opportunity  to  be  heard.  Id.  ; 
Demarest  v.  Darg,  32  N.  Y.  281 ;  cf.  Frauenthar s  Appeal,  100  Pa.  St.  290. 
(<?)  A  judgment  of  a  court  of  competent  jurisdiction,  whether  of  law, 
equity,  admiralty,  etc.,  will  bar  an  action  on  the  same  ground  in  another 
court  whose  jurisdiction  is  of  a  different  nature.      Westcott  \ .  Edmunds^ 


A  DIGEST  OF  [Part  I. 


eluded  in  the  action  in  which  that  judgment  is  intended  to  be 
proved.' 

Illustrations. 

(a)  The  question  is,  whether  C,  a  pauper,  is  settled  in  parish  A  or  par- 
ish B. 

D  is  the  mother  and  E  the  father  of  C.  D,  E,  and  several  of  their 
children  were  removed  from  A  to  B  before  the  question  as  to  C's  settle- 
ment arose,  by  an  order  unappealed  against,  which  order  described  D  as 
the  wife  of  E. 

The  statement  in  the  order  that  D  was  the  wife  of  E  is  conclusive  as 
between  A  and  B.^ 

((5)  A  and  B  each  claim  administration  to  the  goods  of  C,  deceased. 

Administration  is  granted  to  B,  the  judgment  declaring  that,  as  far  as 
appears  by  the  evidence,  B  has  proved  himself  next  of  kin. 

Afterwards  there  is  a  suit  between  A  and  B  for  the  distribiUion  of  the 
effects  of  C.  The  declaration  in  the  first  suit  is  in  the  second  suit  con- 
clusive proof  as  against  A  that  B  is  nearer  of  kin  to  C  than  A.^ 

(c)  A  company  sues  A  for  unpaid  premium  and  calls.  A  special  case 
being  stated  in  the  Court  of  Common  Pleas,  A  obtains  judgment  on  the 
ground  that  he  never  was  a  shareholder. 

The  company  being  wound  up  in  the  Court  of  Chancery,  A  applies  for 
the  repayment  of  the  sum  he  had  paid  for  premium  and  calls.  The  de- 
cision that  he  never  was  a  shareholder  is  conclusive  as  between  him  and 
the  company  that  he  never  was  a  shareholder,  and  he  is  therefore  en- 
titled to  recover  the  sums  he  paid.'' 

(d)  A  obtains  a  decree  of  judicial  separation  from  her  husband  B,  on 
the  ground  of  cruelty  and  desertion,  proved  by  her  own  evidence. 


68  Pa.  St.  34  ;  Powers  v.  Chelsea  Sav.  Bk.,  129  Mass.  44.  Thus  if  one 
sues  on  a  contract  at  law  as  it  is,  he  cannot  afterwards  sue  in  equity  to 
reform  the  contract.     Steittbach  v.  Relief  his.  Co.,  77  N.  Y.  498.] 

'  R.  v.  Hutchins,  L.  R.  5  Q.  B.  D.  353,  supplies  a  recent  illustration  of 
this  principle  ;  [cf.  Putnam  v.  Clark,  34  N.  J.  Eq.  532  ;  Maybee  v.  Avery, 
18  Johns.  352  ;   Qiiinn  v.  Qitinn.^  16  Vt.  426.] 

"  R.  v.  Harthigton  Middle  Quarter,  4  E.  &  B.  780  ;  and  see  Flitters  v. 
Allfrey,  L.  R.  10  C.  P.  29 ;  and  contrast  Dover  v.  Child,  L.  R.  i  E.\.  D. 
172  ;  [see  Bethlehem  v.    IVatertown,  47  Ct.  237.] 

3  Barrs  v.  yackson,  I  Phill.  582,  587,  588  ;  [see  Caujollc  v.  Ferrie,  13 
Wall.  465  ;    White  v.   Weatherbee,  \'2.(i  Mass.  450.] 

^  Bank  of  Hindustan^  etc.,  Allison's  Case,  L.  R.  9  Ch.  App.  2^, 


Chap.  I  V.J        THE  LAW  OF  EVIDENCE.  89 


Afterwards  B  sues  A  for  dissolution  of  marriage  on  the  ground  of 
adultery,  in  which  suit  neither  B  nor  A  can  give  evidence.  A  charges  B 
with  cruelty  and  desertion.  The  decree  in  the  first  suit  is  deemed  to 
be  irrelevant  in  the  second.' 

(e)  [A  sues  B  to  recover  damages  for  the  conversion  of  some  bed-quilts 
and  obtains  judgment. 

This  judgment  defeats  a  recovery  in  a  subsequent  action  for  the  con- 
version of  a  bed  which  was  taken  by  B  at  the  same  time  with  the  quilts.]' 

(/")  [A,  a  physician,  sues  B  in  a  justice's  court  to  recover  the  value  of 
his  medical  services,  and  upon  B's  default  to  appear  and  contest  the  ac- 
tion obtains  judgment. 

B  afterwards  sues  A  in  a  superior  court  to  recover  damages  for  mal- 
practice in  rendering  said  services.  The  former  judgment  is  conclusive 
in  bar  of  the  action.  The  defence  of  malpractice  might  have  been  set  up 
in  the  first  suit  and  used  to  defeat  recovery  therein  ;  moreover,  an  award 
of  damages  against  the  physician  for  this  cause  would  be  wholly  incon- 
sistent with  his  prior  recovery  for  his  services.]  ^ 

(^)  [A  sues  B  on  a  promissory  note,  and  the  suit  not  being  defended, 
enters  judgment  for  its  full  face  value,  without  crediting  B  with  a  pay- 
ment already  made  thereon.  This  judgment  bars  a  subsequent  action  by 
B  to  recover  the  amount  of  said  payment.]  * 

(h)  [An  assignee  in  bankruptcy  sued  several  defendants  to  determine 
the  title  to  certain  goods,  and  it  was  adjudged  that  the  title  was  in  him. 
One  of  these  defendants,  who  claimed  title  in  himself  and  had  put  it  in 
issue  in  this  suit,  afterwards  sued  another  of  them  to  recover  the  same 
goods. 

The  judgment  in  the  first  suit  is  conclusive  against  the  right  to  recover 
in  the  second.]  * 

(»)  [A  sues  B  for  the  conversion  of  goods  which  are  a  part  of  those  in- 
cluded in  a  certain  bill  of  sale  given  by  C  to  B,  and  A  recovers  judgment 


^  Stoate  v.  Stoate,  2  Swa.  &  Tr.  223;  \^VVoodruff  \.  Woodruff,  11  Me. 
475  ;  cf.  Bradley  v.  Bradley,  id.  367. J 

2  \^Farringto»  v.  Payne,  15  Johns.  432.] 

=  \_Blair  v.  Bartleft,  75  N.  Y.  150 ;  S.  P.  Dunham  v.  Bower,  77  N.  Y. 
76 ;  contra,  Ressequie  v.  Byers,  52  Wis.  650 ;  Sykes  v.  Bonner,  i  Cine. 
(O.)  464;  see  Goble  \.  Dillon,  86  Ind.  327;  Howell  v.  Goodrich,  69  111. 
556  ;  Haynes  v.  Ordway,  58  N.  H.  167.] 

*  [Binck  V.  Wood,  43  Barb.  315  ;  Greenabaum  v.  Elliott,  60  Mo.  25  ; 
Loring  v.  Mansfield,  17  Mass.  394.  ] 

^\Tuska  V.  O'Brien,  68  N.  Y.  446.J 


90  A  DIGEST  OF  [Part  I. 

on  the  ground  that  the  bill  of  sale  is  fraudulent  and  void.  B  afterwards 
sues  A  for  the  residue  of  the  goods  covered  by  the  bill  of  sale. 

The  former  judgment  is  deemed  conclusive  upon  the  question  of  fraud, 
and  defeats  B's  recovery.]  ' 

(7)  [A  sues  B  to  recover  the  price  of  goods  sold  and  obtains  judgment. 

Afterwards  A  sues  B  to  recover  damages  for  fraud  in  obtaining  a  credit 
for  the  goods.     The  former  judgment  defeats  recovery.]  2 

Article  42. 

statements  in  judgments  irrelevant  as  between 
strangers,  except  in  admiralty  cases. 

Statements  contained  in  judgments  as  to  the  facts  upon 
which  the  judgment  is  based  are  deemed  to  be  irrelevant  as 
between  strangers,  or  as  between  a  party  or  privy  and  a 
stranger,'  except ''  in  the  case  of  judgments  of  Courts  of  Ad- 
miralty condemning  a  ship  as  prize. ^     In  such  cases  the  judg- 


'  {Doty  V.  Brown,  4  N.  Y.  71.] 

"  {Caylus  V.  N.  Y.,  etc.  R.  Co.,  76  N.  Y.  609  ;  it  is  a  general  rule  that  a 
prior  recovery  will  bar  a  subsequent  action  for  the  same  claim,  though 
the  forms  of  action  be  entirely  different.     Gr.  Ev.  i.  ^§  532,  533.] 

3  [Campbell  v.  Hull,  16  N.  Y.  575  ;  Railroad  Co.  v.  iVat.  Bk.,  102  U.  S. 
14  ;    Wing  V.  Bishop,  3  Allen,  456.] 

■•This  exception  is  treated  by  Lord  Eldon  as  an  objectionable  anomaly 
in  Lothian  v.  Henderson,  3  B.  &  P.  545.  See,  too,  Castrique  v.  Itnrie,  L. 
R.  4  E.  &  L  App.  434-5. 

6  [A  judgment  of  a  court  of  Admiralty  condemning  a  ship  as  prize,  or 
of  any  competent  court  condemning  property  under  laws  of  forfeiture,  be- 
longs to  the  class  of  judgments  commonly  called  judgments  itt  rem.  It 
is  a  general  rule  that  such  judgments  are  conclusive,  not  only  as  to  par- 
ties and  privies  but  even  as  to  all  the  world.  Gelston  v.  Hoyt,  13  Johns. 
561,  3  Wheat.  246  ;  Risley  v.  Phenix  Bk.,  83  N.  Y.  318,  332.  Decisions  as 
to  personal  status,  viz.,  marriage,  divorce,  bastardy,  etc.,  are  often  in- 
cluded in  the  same  category.  Gr.  Ev.  i.  §§  525,  541-546.  But  an  adju- 
dication as  to  personal  status  may,  in  some  cases,  only  be  effectual  within 
the  limits  of  the  State  in  which  the  decision  is  rendered.  People  v. 
Baker,  76  N.  Y.  78 ;  Wh.  Ev.  ii.  $§  815-818  ;  cf.  Bishop,  M.  &  D.  ii.  %% 
155-200,  6th  Ed.    Sc  attachment  suits  against  non-residents  are  in  the 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  91 


ment  is  conclusive  proof  as  against  all  persons  of  the  fact  on 
which  the  condemnation  proceeded,  where  such  fact  is  plainly 
stated  upon  the  face  of  the  sentence. 

Illustrations. 

{a)  The  question  between  A  and  B  is,  whether  certain  lands  in  Kent 
had  been  disgavelled.  A  special  verdict  on  a  feigned  issue  between  C 
and  D  (strangers  to  A  and  B)  finding  that  in  the  2nd  Edw.  VI.  a  disgav- 
elling  Act  was  passed  in  words  set  out  in  the  verdict  is  deemed  to  be  irrel- 
evant.' 

[b)  The  question  is,  whether  A  committed  bigamy  by  marrying  B  dur- 
ing the  lifetime  of  her  former  husband  C. 

A  decree  in  a  suit  of  jactitation  of  marriage,  forbidding  C  to  claim  to 
be  the  husband  of  A,  on  the  ground  that  he  was  not  her  husband,  is 
deemed  to  be  irrelevant.^ 

(< )  The  question  is,  whether  A,  a  shipowner,  has  broken  a  warranty 
to  B,  an  underwriter,  that  the  cargo  of  the  ship  whose  freight  was  insured 
by  A  was  neutral  property. 

The  sentence  of  a  French  prize  court  condemning  ship  and  cargo,  on 
the  ground  that  the  cargo  was  enemy's  property,  is  conclusive  proof  in 
favor  of  B  that  the  cargo  was  enemy's  property  (though  on  the  facts  the 
Court  thought  it  was  not.)  ^ 

((/)  [The  question  is  whether  A  or  C  is  rightfully  entitled  to  hold  a 
public  office. 

A  judgment  in  a  previous  action  between  A  and  B  to  determine  the 


nature  of  actions  in  rem,  the  property  attached  being  the  res.  Pennoyer 
v.  Neff,  95  U.  S.  714  ;  Mc Kinney  v.  Collins,  88  N.  Y.  216.  This  general 
doctrine  as  to  judgments  in  rem  is  virtually  included  in  Article  40,  supra. 
See  Appendix,  Note  XXIII. 

The  English  rule  stated  in  this  article,  that  the  judgment  of  condemna- 
tion is  conclusive,  not  only  as  to  title  but  also  as  to  the  grounds  of  con- 
demnation stated  therein,  is  upheld  also  in  some  American  courts. 
Croudson  v.  Leonard,  4  Cr.  434  ;  see  Cushing  v.  Laird,  107  U.  S.  69,  80  ; 
Baxter  v.  New  Eng.  Ins,  Co. ,  6  Mass.  277.  But  in  New  York  it  is  only 
frim^ facie  evidence  of  such  facts,  and  in  a  collateral  action  such  evi- 
dence may  be  rebutted.     Durant  v.  Abendroth,  97  N.  Y.  132,  141.] 

1  Doe  V.  Drydges,  6  M.  &  G.  282. 

^  Duchess  of  Kingston  s  Case,  2  S.  L.  C.  760  ;  [see  Williams  v.  Williams, 
3  Barb.  Ch.  628.] 

3  Geyer  v.  Aguilar,  7  T.  R.  681  ;  [sec  Note  5,  supra.\ 


92  A  DIGEST  OF  [Part  I. 

title  to  the  same  office,  in  which  it  was  declared  that  A  had  the  rightful 
title,  is  deemed  to  be  irrelevant  as  against  C] ' 

Article  43. 
effect  of  judgment  not  pleaded  as  an  estoppel. 

If  a  judgment  is  not  pleaded  by  way  of  estoppel,  it  is  as  be- 
tween parties  and  privies  deemed  to  be  a  relevant  fact,  when- 
ever any  matter  which  was  or  might  have  been  decided  '  in 
the  action  in  which  it  was  given  is  in  issue,  or  is  or  is  deemed 
to  be  relevant  to  the  issue,  in  any  subsequent  proceeding. 

Such  a  judgment  is  conclusive  proof  of  the  facts  which  it 
decides,  or  might  have  decided,"  if  the  party  who  gives  evi- 
dence of  it  had  no  opportunity  of  pleading  it  as  an  estoppel.' 

Illustrations. 

[a)  A  sues  B  for  deepening  the  channel  of  a  stream,  whereby  the  flow 
of  water  to  A's  mill  was  diminished. 

A  verdict  recovered  by  B  in  a  previous  action  for  substantially  the  same 
cause,  and  which  might  have  been  pleaded  as  an  estoppel,  is  deemed  to 
be  relevant,  but  not  conclusive  in  B's  favor. •> 

{V)  A  sues  B  for  breaking  and  entering  A's  land,  and  building  thereon 
a  wall  and  a  cornice.  B  pleads  that  the  land  was  his,  and  obtains  a 
verdict  in  his  favor  on  that  plea. 


'  [People  V.  Murray,  73  N.  Y.  535.] 

''[That  a  judgment  is  conclusive  as  to  what  "might  have  been  de- 
cided," see  Art.  41,  note  2.] 

5  [But  it  is  held  in  many  States  of  this  country  that  ajudgment  is  equally 
conclusive  when  given  in  evidence,  as  if  pleaded,  even  though  there  was 
an  opportunity  to  plead  it.  Krekeler  v.  Hitter,  62  N.  Y.  372 ;  Foye  v. 
Patch,  132  Mass.  105  ;  Furlcy  v.  Hatibert,  30  Pa.  St.  194  ;  Walker  v. 
Chase,  53  Me.  258 ;  Bcall  v.  Pearre,  12  Md.  550  ;  Larum  v.  Wilmer,  35 
la.  244;  see  Blair  v.  Blair,  45  Vt.  538  ;  Sheldon  v.  Patterson,  55  111.  507. 
But  some  States  follow  the  English  rule.  Clink  v.  Thurston,  47  Cal.  21  ; 
Fatiningw.  Ins.  Co.,  37  O.  St.  344.] 

■f  Vooghtw.  Winch,  2  B.  &  A.  662;  and  see  Feversha9n  v.  Emerson,  11 
E.x.  391 ;  [see  Plate  v.  N.  Y.  C.  R.  Co.,  37  N.  Y.  472  ;  Bowyer  v.  Scho- 
Jield,  I  Abb.  Dec.  177;  Newell  \.  Carpenter,  118  Mass.  411.] 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  93 

Afterward  B's  devisee  sues  A's  wife  (who  on  the  trial  admitted  that 
she  claimed  through  A)  for  pulling  down  the  wall  and  cornice.  As  the 
first  judgment  could  not  be  pleaded  as  an  estoppel  (the  wife's  right  not 
appearing  on  the  pleadings),  it  is  conclusive  in  B's  favor  that  the  land 
was  his.' 

Article  44. 

judgments  generally  deemed  to  be  irrelevant  as 
between  strangers. 

Judgments  are  not  deemed  to  be  relevant  as  rendering  prob- 
able facts  which  may  be  inferred  from  their  existence,  but 
which  they  neither  state  nor  decide — 

as  between  strangers  ; " 

as  between  parties  and  privies  in  suits  where  the  issue  is 
different,  even  though  they  relate  to  the  same  occurrence  of 
subject  matter; ' 

or  in  favor  of  strangers  against  parties  or  privies.'' 


'  Whitaker  v.  jfackson,  2  H.  &  C.  926.  This  had  previously  been 
doubted.     See  2  Ph.  Ev.  24,  n.  4. 

^  [Gr.  Ev.  i.  $§522,  523;  Bartlett  v.  Boston  Gas  Co.,  122  Mass.  209; 
Sclirauth  v.  Dry  Dock  Bk.,  86  N.  Y.  390  ;  see  Art.  42,  note  3.] 

"  [Gr.  Ev.  i.  %%  532,  533  ;  Stowell  v.  Chamberlain,  60  N.  Y.  272  ;  Cole- 
man's  Appeal,  62  Pa.  St.  252  ;  Russell  v.  Place,  94  U.  S.  606  ;  A'orton  v. 
Huxley,  13  Gray,  285  ;  see  Illustrations  {ca)  {,cb).  So  a  judgment  is  not 
binding  on  the  parties  as  to  matters  not  passed  upon,  though  they  are 
stated  in  the  complaint  {Stvcct  v.  Tuttlc,  14  N.  Y.  465),  or  are  given  in 
evidence  (see  Illustration  {cc)),  or  are  improperly  set  up  by  way  of  coun- 
terclaim {People  v.  Denison,  84  N.  Y.  272)  ;  nor  as  to  matters  which  the 
judgment  does  affirm,  but  which  are  immaterial  to  the  issue  and  not 
actually  in  controversy  [People  v.  yohnson,  38  N.  Y.  63),  or  as  to  matters 
which  are  only  incidentally  cognizable,  or  to  be  inferred  by  argument 
from  the  judgment  (Gr.  Ev.  i.  ^  528  ;  Hopkins  v.  Lee,  6  Wheat.  109  ;  Burlen 
v.  Shannon,  99  Mass.  200;  Lentz\.  Wallace.,  17  Pa.  St.  412)  ;  nor  is  a 
judgment  against  a  party  individually  binding  on  him  in  a  suit  wherein 
he  appears  in  a  representative  capacity.  Kathbo7ie  v.  Hooney,  58  N.  Y. 
463  ;  Lauder  v.  Arno,  65  Me.  26.] 

*  [Burdick  v.  Norwich,  49  Ct.  225  ;  Bissell  v.  Kellogg,  65  N.  Y.  432  ; 
see  Phillips  V.  yamieson,  31   Mich.  153  ;  but  a  judgment  against  one  of 


94  A  DIGEST  OF  [Part  I. 


But  a  judgment  is  deemed  to  be  relevant  as  between 
strangers  : 

(i)  if  it  is  an  admission,'  or 

(2)  if  it  relates  to  a  matter  of  public  or  general  interest, 
so  as  to  be  a  statement  under  article  30.^ 

Illustrations. 

[a)  The  question  is,  whether  A  has  sustained  loss  by  the  negligence  of 
B,  his  servant,  who  has  injured  C's  horse. 

A  judgment  recovered  by  C  against  A  for  the  injury,  though  conclusive 
as  against  B,  as  to  the  fact  that  C  recovered  a  sum  of  money  from  A,  is 
deemed  to  be  irrelevant  to  the  question,  whether  this  was  caused  by  B's 
negligence.  3 

((71^)  [B  unlawfully  creates  an  obstruction  in  the  street  of  a  city,  and  A, 
being  injured  thereby,  sues  the  city  for  damages.  The  city  gives  notice 
to  B  to  defend  the  action,  and.  that  he  will  be  liable  for  the  amount  re- 
covered.    B  does  not  defend  the  action,  and  A  recovers  judgment. 

In  a  suit  afterward  brought  by  the  city  against  B  for  indemnity,  the 
prior  judgment  is  conclusive  evidence  against  B  of  the  city's  liability  to 
A,  of  the  amount  of  damages  recoverable,  and  that  the  injury  was  not 
caused  by  any  default  on  A's  part  ;  but  is  not  competent  to  prove  that 
the  injury  was  caused  by  B's  negligence,  which  must  therefore  be 
shown.]  ^ 


two  or  more  joint  tortfeasors,  if  followed  by  satisfaction  (not  otherwise) 
is  available  to  bar  a  suit  against  another.  Knapp  v.  Roche,  94  N.  Y.  329  ; 
I.ovejoy  V.  Murray,  3  Wall,  i  ;  Elliott  v.  Hayden,  104  Mass.  180.  But 
judgment  against  one  of  two  joint  contractors  bars  an  action  against  the 
other.     Kingsley  v.  Davis,  104  Mass.  178.] 

'  [Gr.  Ev.  i.  527  a;  St.  Louis  Ins.  Co.  v.  Cravens,  69  Mo.  72  ;  Parks  v. 
Masher,  71  Me.  304,  holding  it  open  to  explanation  ;  see  City  Bk.  v.  Dear- 
horn,  20  N.  Y.  244.] 

"  [See  People  v.  Buckland,  13  Wend.  594.] 

'  Greens.  Nexv  River  Compa?iy,  ^  T.  R.  589;  \^Bank  of  Owcgov.  Babcock, 
5  Hill,  152;  Second  Nat.  Bk.  v.  Ocean  iVat.  Bk.,  11  Blatch.  362;  Drum- 
mond\.  Prestman,  12  Wheat.  515  ;  see  ne.xt  note.] 

^  \_City  of  Rochester  v.  Montgomery,  72  N.  Y.  65  ;  Robbins  v.  Chicago,  4 
Wall.  657,  2  Black,  418  ;  Boston  v.  IVorthington,  10  Gray,  496  ;  see  Port- 
land v.  Richardson,  54  Me.  46.  The  notice  need  not  be  express.  Village 
of  Port  jfcrvls  v.  First  jXut.  Bk.,  96  N.  Y.  550.  The  same  principle  af)- 
plies  in  other  cases  where  one  party  is  primarily  liable,  but  has  a  remedy 


Chap.  IV.]       THE  LAW  OF  EVIDENCE.  95 

(b)  The  question  w  hether  a  bill  of  exchange  is  forged  arises  in  an  action 
on  the  bill.  The  fact  that  A  was  convicted  of  forging  the  bill  is  deemed 
to  be  irrelevant.' 

(f)  A  collision  takes  place  between  two  ships,  A  and  B,  each  of  which 
is  damaged  by  the  other. 

The  owner  of  A  sues  the  owner  of  B,  and  recovers  damages  on  the 
ground  that  the  collision  was  the  fault  of  B's  captain.  This  judgment 
is  not  conclusive  in  an  action  by  the  owner  of  B  against  the  owner  of  A. 
for  the  damage  done  to  B.^     (Semblc,  it  is  deemed  to  be  irrelevant. )3 

{Cii)  [A  recovers  damages  from  B  for  a  wrongful  dismissal  from  B's 
employment  before  the  term  of  service  had  expired. 

This  judgment  does  not  preclude  a  recovery  by  A  in  a  subsequent 
action  of  the  sum  due  for  wages  during  the  time  he  was  actually  em- 
ployed, and  payable  before  the  dismissal.]  ■• 

{cb)  [The  will  of  A  is  duly  admitted  to  probate  by  a  surrogate's  court 
having  competent  jurisdiction. 

A's  widow  afterwards  brings  action  for  the  admeasurement  of  her 
dower. 


over  against  another  to  obtain  indemnity.  Heiser  v.  Hatch,  86  N.  Y. 
614  ;  Cj.  T.  R.  Co.  v.  Latham,  63  Me.  177  ;  Chicago,  etc.  R.  Co.  v.  Packet 
Co.,  70  111.  217.  As  a  general  rule,  a  judgment  against  a  principal  is  not 
binding  upon  his  surety  (though  it  may  be  used  to  prove  the  fact  of  its 
recovery),  unless  the  latter  agreed  to  indemnify  against  the  results  of  the 
suit,  or  unless  he  had  notice  and  opportunity  to  defend.  Thomas  v.  Hi;b- 
bcll,  15  N.  Y.  405  ;  Giltma?i  v.  Strong,  64  Pa.  St.  242.  Sureties  upon 
official  bonds,  as  administrators'  bonds,  sheriffs'  bonds,  etc.,  are  often 
held  concluded  by  such  judgments  (in  the  absence  of  fraud  or  collusion), 
though  they  had  no  notice,  such  being  deemed  the  obligation  of  their 
contracts.  Jordan  v.  Volkenning,  72  N.  Y.  300  ;  Harrison  v.  Clark,  87 
N.  Y.  572;  A/c.Micken  \.  Comm..,  58  Pa.  St.  213;  Cutter  v.  Evans,  115 
Mass.  27.  As  to  the  different  kinds  of  indemnity  contracts  and  the  neces- 
sity of  giving  notice,  see  Bridgeport  Ins.  Co.  v.  Wilson,  34  N.  Y.  274, 
280  ;  of.  Konitzky  v.  Ahycr,  49  N.  Y.  571.] 

'  Per  Blackburn,  J.,  in  Castrique  v.  Imrie,  L.  R.  4  E.  &  I.  App.  434; 
[Gr.  Ev.  i.  §  537  ;  see  Mutual  Ins.  Co.  v.  TisdaU\  91  U.  S.  238,  244  ;  Si^ns 
v.  Sims.,  75  N.  Y.  466,  471  ;  Corbley  v.  Wilson,  71  111.  209  ;  Hargcr  v. 
Ihomas,  44  Pa.  St.  128.] 

2  The  Calypso,  i  Swab.  Ad.  28. 

3  On  the  general  principle  in  Duchess  of  Kingston's  Case,  2  S.  L.  C. 
813. 

<  \_Perry  v.  Dickcrson,  85  N.  Y.  345.] 


96  A  DIGEST  OF  [Part  I. 

The  surrogate's  record  of  probate  of  A's  will  is  not  deemed  to  be  rele- 
vant to  prove  A's  death.]  ' 

(cc)  [A  sues  B  to  recover  the  value  of  board  furnished  to  B's  wife,  and 
recovers  judgment,  but  the  judgment  does  not  state  whether  it  is  ren- 
dered (i)  because  B's  wife  had  left  him  on  account  of  his  cruelty,  or  (2) 
because  she  was  absent  from  him  on  his  credit  by  his  consent.  Evidence 
to  support  both  grounds  was  given  on  the  trial. 

A  afterwards  sues  B  to  recover  board  for  a  subsequent  period,  and  sues 
now  expressly  on  the  ground  that  B's  wife  had  left  him  for  his  cruelty. 
The  former  judgment  is  conclusive  evidence  that  B's  wife  was  absent 
from  him  during  the  prior  period  for  so7ne  justifiable  cause,  but  not  that 
that  cause  was  his  cruelty,  unless  the  jury  find,  from  parol  evidence  sub- 
mitted to  show  what  was  proved  in  the  former  trial,  that  the  former  jury 
gave  their  verdict  on  the  ground  of  cruelty.]  ^ 

{d)  A  is  prosecuted  and  convicted  as  a  principal  felon. 

B  is  afterwards  prosecuted  as  an  accessory  to  the  felony  committed 
by  A. 

The  judgment  against  A  is  deemed  to  be  irrelevant  as  against  B,  though 
A's  guilt  must  be  proved  as  against  B.^ 

{e)  A  sues  B,  a  carrier,  for  goods  delivered  by  A  to  B. 

A  judgment  recovered  by  B  against  a  person  to  whom  he  had  deliv- 
ered the  goods,  is  deemed  to  be  relevant  as  an  admission  by  B  that  he 
had  them.'' 

(/")  A  sues  B  for  trespass  on  land. 

A  judgment,  convicting  A  for  a  nuisance  by  obstructing  a  highway  on 
the  place  said  to  have  been  trespassed  on,  is  (at  least)  deemed  to  be  rele- 
vant to  the  question  whether  the  place  was  a  public  highway  (and  is 
possibly  conclusive). 5 


1  [Carrol/  v.  Carroll,  60  N.  Y.  121  ;  S.  P.  Mutual  Ins.  Co.  v.  Tisdale, 
91  U.  S.  238  ;  cf.  Kearney  v.  Demi,  15  Wall.  51  ;  but  see  Cuiininghain 
V.  Smith's  Adm'r,  70  Pa.  St.  450.] 

2  \Biirlen  v.  Shannon,  14  Gray,  433.] 

3  Semble  from  R.  v.  Turner,  i  Moo.  C.  C.  347.  [In  this  country  it  is 
generally  held  that  the  judgment  against  A  is  admissible  in  such  a  case, 
and  is  prima  facie  evidence  of  A's  guilt,  but  not  conclusive.  B  may, 
therefore,  controvert  it.  Lezy  v.  People,  80  N.  Y.  327  ;  State  v.  Mosley,  31 
Kan.  355  ;  Bishop  Cr.  Pro.  ii.  %  12,  3d  Ed.;  cf.  Comm.  v.  Elisha,  3  Gray, 
460;  yones\.  People,  20  Hun,  545.] 

«  Buller,  N.  P.  242,  b. 

6  Petrie  v.  Nuttall,  11  Ex.  569. 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  97 

Article  45. 

judgments  conclusive  in  favor  of  judge. 

When  any  action  is  brought  against  any  person  for  anything 
done  by  him  in  a  judicial  capacity,  the  judgment  delivered, 
and  the  proceedings  antecedent  thereto,  are  conclusive  proof 
of  the  facts  therein  stated,  whether  they  are  or  are  not  neces- 
sary to  give  the  defendant  jurisdiction,  if,  assuming  them  to  be 
true,  they  show  that  he  had  jurisdiction. 

Illustration. 

A  sues  B  (a  justice  of  the  peace)  for  taking  from  him  a  vessel  and 
500  lbs.  of  gunpowder  thereon.  B  produces  a  conviction  before  him- 
self of  A  for  having  gunpowder  in  a  boat  on  the  Thames  (against  2 
Geo.  in.  c.  28). 

The  conviction  is  conclusive  proof  for  B,  that  the  thing  called  a  boat 
was  a  boat,'. 

Article  46. 
fraud,  collusion,  or  want  of  jurisdiction  may  be 

PROVED. 

Whenever  any  judgment  is  offered  as  evidence  under  any 
of  the  articles  hereinbefore  contained,  the  party  against  whom 


'  Brittain  v.  Kinnaird,  I  B.  &  B.  432  ;  [see  Harman  v.  Brotherson,  i 
Den.  537 ;  People  v.  Collins,  19  Wend.  56,  62  ;  Wells  v.  Stevens,  2  Gray, 
115,  119.  It  is  stated  as  a  general  rule  (not  limited  to  actions  against 
judges)  that  when  the  jurisdiction  of  a  court  depends  upon  a  fact  which 
the  court  is  required  to  ascertain  and  determine  in  its  decision,  such  de- 
cision is  final,  until  reversed  or  vacated  in  a  direct  proceeding  for  that 
purpose  {Otis  v.  The  Rio  Grande,  i  Woods,  279  ;  Colton  v.  Beardsley,  38 
Barb.  29,  51  ;  Stoddard  v.  Johnson,  75  Ind.  20  ;  see  Dyckman  v.  Mayor 
of  N.  K,  5  N.  Y.  434,  440),  and  will  protect  all  persons  acting  upon  it  in 
good  faith.  But  in  other  cases  in  which  some  fact  must  exist  to  give 
jurisdiction,  a  court  cannot  acquire  jurisdiction  simply  by  deciding  that 
such  fact  exists.  Roderigas  v.  East  River  Sav.  Inst.,  63  N.  Y.  460,  464  ; 
see  Grignons  Lessee  v.  Astor,  2  How.  (U.  S. )  319.] 


98  A  DIGEST  OF  [Part  I. 

it  is  so  offered  may  prove  that  the  Court  which  gave  it  had  no 
jurisdiction,'  or  that  it  has  been  reversed,' or,  if  he  is  a  stranger 


'  [On  the  ground  that  "  a  record  imports  absolute  verity,"  it  is  a  gen- 
erally received  common  law  doctrine  in  this  country  that  while  the  judg- 
ment of  a  domestic  court  of  general  jurisdiction,  acting  in  the  scope  of  its 
general  powers,  may  be  avoided  in  a  collateral  proceeding  for  lack  of 
jurisdiction  apparent  on  the  face  of  the  record  itself,  yet  that  this  cannot 
be  done  when  the  recitals  of  the  record  show  that  the  court  had  jurisdic- 
tion (Blaisdell  v.  Pray,  68  Me.  269;  Finncran  v.  Leonard,  7  Allen,  54; 
Miller  v.  Duncan,  6  Vr.  389  ;  Coan  v.  Clow,  83  Ind.  417  ;  Tiirrell  v. 
Warren,  25  Minn.  9  ;  Culver's  Appeal,  ifi(Z^.  165,  173  ;  Bafinon  v.  People, 
I  Bradw.  496  ;  Wetherill  v.  Stillman,  65  Pa.  St.  105  ;  llahn  v.  Kelly,  34 
Cal.  391  ;  that  jurisdiction  will  be  presumed  when  the  record  is  silent  on 
that  point,  see  Galpiii  v.  Pai^e,  18  Wall.  350)  ;  but  there  has  been  much 
diversity  of  opinion  as  to  the  last  branch  of  this  rule.  See  Fer^uso?t  v. 
Crawford^  70  N.  Y.  253,  86  N.  Y.  609.  Judgments  of  inferior  courts,  or 
of  courts  of  limited  jurisdiction,  or  even  of  courts  of  general  jurisdiction 
acting  in  the  exercise  of  special  statutory  powers  not  according  to  the 
course  of  the  common  law,  may,  however,  be  attacked  collaterally,  as  a 
general  rule,  for  lack  of  jurisdiction.  Id.;  Coitv.  I/aven,  3oCt.  190;  Galpin 
V.  Page,  supra  ;  Kisley  v.  Phenix  Bk.,  83  N.  Y.  318  ;  but  see  Hahn  v. 
Kelly  ^  supra;  Hcndrick  v.  Whittemore,  105  Mass.  23,  28.  And  a  judg- 
ment of  any  court  may  be  impeached  for  this  cause  by  a  stranger  to  it. 
Freydcndall  v.  Baldwin,  103  111.  325  ;  Buffiini  v.  Ramsdell,  55  Me.  252. 

In  some  States,  however,  in  which  equitable  defences  are  allowed  in 
legal  actions,  the  judgments  even  of  higher  courts  may  be  attacked  col- 
laterally for  fraud  in  acquiring  jurisdiction,  notwithstanding  this  contra- 
dicts the  record.  Ferguson  v.  Crawford,  supra  ;  Clark  v.  Little,  41  la. 
497  ;  see  Cavanaugh  v.  Smith,  84  Ind.  380,  in  which  case  the  record  was 
silent  as  to  jurisdiction.  And  some  cases  declare  broadly  that  a  judg- 
m.ent  rendered  without  or  in  excess  of  jurisdiction  can  be  shown  to  be 
void  for  this  cause  either  directly  or  collaterally.  Bosiuorth  v.  Vandc- 
walker,  53  N.  Y.  597  ;  U.  S.  v.  Walker,  109  U.  S.  258  ;  see  Ferguson  v. 
Crawford,  supra,  and  cases  cited  therein.  These  rules  apply  both  to  juris- 
diction over  the  person  and  over  the  subject  matter.  But  a  judgment 
cannot  be  collaterally  impeached  for  error  or  irregularity.  Comstock  v. 
Crawford,  3  Wall.  396  ;  Hheldon  v.    Wright^  5  N.  Y.  497.] 

^  {Smith  V.  Frankfield,  77  N .  Y.  414;  Clodfelter  v.  Hulett,  92  Ind. 
426.  As  to  the  effect  of  an  appeal,  while  yet  pending,  see  Mtirray  v. 
Green,  64  Cal.  363  ;  Sage  v.  Harpending,  49  Barb.  166  ;  De  Camp  v. 
Miller,  44  N.  J.  L.  617.] 


Chap.  IV.]        THE  LAW  OF  EVIDENCE.  99 


to  it,  that  it  was  obtained  by  any  fraud  or  collusion,'  to  which 
neither  he  nor  any  person  to  whom  he  is  privy  was  a  party." 

Article  47. 

foreign  judgments. 

The  provisions  of  articles  40-46  apply  to  such  of  the  judg- 
ments of  Courts  of  foreign  countries  as  can  by  law  be  enforced 
in  this  country,  and  so  far  as  they  can  be  so  enforced.' 


'  [A  stranger,  but  not  a  party,  may  avoid  collaterally  for  fraud.  Otter- 
son  V.  MiddUton,  102  Pa.  St.  78  ;  Davis  v.  Davis,  61  Me.  395  ;  Krekeler 
V.  Ritter,  62  N.  Y.  372.  But  as  a  party  may  in  a  proper  case  bring  suit 
in  equity  to  avoid  a  judgment  procured  by  fraud  {Ross  v.  Wood,  70  N.  Y. 
8),  so  in  some  States  he  may  set  up  such  fraud  as  an  equitable  defence. 
MandevilU  v.  Reynolds,  68  N.  Y.  543-546  ;  Ferg-iison  v.  Crawford,  70 
N.  Y.  253.  And  when  the  fraud  is  in  acquiring  jurisdiction,  the  rules  in 
note  I,  supra,  apply.] 

'  Cases  on  this  article  collected  in  T.  E.  ss.  1524-1525,  s.  1530.  See, 
too,  2  Ph.  Ev.  35,  and  Ochsetibein  v.  Papelier,  L.  R.  8  Ch.  695. 

^  The  cases  on  this  subject  are  collected  in  the  note  on  the  Duchess 
of  Kingston  s  Case,  2  S.  L.  C.  813-845.  A  list  of  the  cases  will  be  found 
in  R.  N.  P.  221-3.  The  last  leading  cases  on  the  subject  are  Godard  v. 
Gray,  L.  R.  6  Q.  B.  139,  and  Castrique  v.  Imrie,  L.  R.  4  E.  &  I.  App. 
414,  See,  too,  Schisby  v.  Westenhoh,  L.  R.  6  Q.  B.  155,  and  Rousillon 
V.  Rousillon,  L.  R.  14  Ch.  D.  370. 

[The  judgments  of  sister  States  are  in  this  country  ranked  as  foreign 
judgments  within  this  rule.  The  U.  S.  Constitution  declares  that  "full 
faith  and  credit  shall  be  given  in  each  State  to  the  public  acts,  records, 
and  judicial  proceedings  of  every  other  State."  Art.  4,  $  i.  Neverthe- 
less, such  judgments  may  be  avoided  collaterally  for  lack  of  jurisdiction, 
even  in  contradiction  of  recit.ils  in  the  record  showing  jurisdiction 
(^Thompson  v.  IVkttman,  18  Wall.  457  ;  h'err  v.  Kerr,  41  N.  Y.  272  ;  Peo- 
ple V.  Dawell,  25  Mich.  247  ;  yardine  v.  Reichert,  39  N.  J.  L.  165  ;  Penny- 
wit  v.  Foote,  27  O.  St.  6co ;  Gilman  v.  Gilman,  126  Mass.  26  ;  see  Cook  v. 
Cook,  56  Wis.  195  ;  contra,  as  to  impeaching  recitals,  Wetherillx.  Stillman, 
65  Pa.  St.  105  ;  Zepp  V.  Hager,  70  111.  223),  or  for  fraud  in  acquiring  juris- 
diction over  the  person.  Stanton  v.  Crosby,  9  Hun,  370  ;  Ditnlap  v.  Cody, 
31  la.  260.  So  fraud  otherwise  committed  in  procuring  the  judgment  (if 
not  available  as  a  defence  in  the  original  suit),  may  be  set  up  in  some 
States  as  an  equitable  defence  to  the  judgment  (Dobson  v.  Pe^vrce,   12 


loo  A  DIGEST  OF  [Part  I. 


CHAPTER  v.* 
OPINIONS,    WHEN  RELEVANT  AND    WHEN  NOT. 

Article  48, 

opinion  generally  irrelevant. 

The  fact  that  any  person  is  of  opinion  that  a  fact  in  issue,  or 
relevant  or  deemed  to  be  relevant  to  the  issue,  does  or  does 
not  exist  is  deemed  to  be  irrelevant  to  the  existence  of  such 
fact,'  except  in  the  cases  specified  in  this  chapter.^ 


*  See  Note  XXIV. 
N.  Y.  156;  Rogers  v.  Gwin?i,  21  la.  58  ;  see  Hunt  v.  Hunt,  72  N.  Y.  217), 
and  a  court  of  equity  will  set  such  a  judgment  aside.  Doughty  v. 
Doughty,  orj  N.  J.  Eq.  315.  But  such  judgments  are  not  impeachable 
upon  the  merits  for  error  or  for  irregularity.  Pringle  v.  Wood-worth, 
90  N.  Y.  502  ;  Christmas  v.  Russell,  5  Wall.  290  ;  see  Nichols  v.  Nichols, 
25  N.  J.  Eq.  60. 

Similar  principles  apply  to  foreign  judgments.  Lazier  v.  Westcott,  26 
N.  Y.  146  ;  Grahatn  v.  Spencer,  14  F.  R.  603  ;  Bischoff  v.  Wetherel,  9 
Wall.  812  ;  Roth  v.  Roth,  104  111.  35.  It  is  held  in  England  that  fraud 
in  procuring  such  a  judgment  is  a  good  defence,  though  the  fact  whether 
such  fraud  existed  had  been  investigated  in  the  foreign  court.  Abou- 
loff\.  Oppenheimer,  10  Q.  B.  D.  295. 

As  to  the  effect  of  a  judgment  in  another  State  obtained  by  default 
upon  service  of  process  by  publication  on  a  non-resident  and  an  attach- 
ment of  his  property,  see  Pcnnoyer  v.  Ncff,  95  U.  S.  714  ;  Fitzsimons 
V.  Marks,  66  Barb.  333  ;  Gilman  v.  Oilman,  126  Mass.  26 ;  Eastman  v. 
Wadleigh,  65  Me.  25  ;  and  see  generally  as  to  judgments  in  rein,  Durant 
V.  Abendroth,  97  N.  Y.  132.] 

'  [It  is  a  general  rule  that  witnesses  must  give  evidence  oi facts,  not  of 
opinions.  Conn.  Ins.  Co.  v.  Lathrop,  11 1  U.  S.  612,  618  ;  Continental  Ins. 
Co.  V.  Delpench,  82  Pa.  St.  225  ;  Simmons  v.  N^ew  Bedford,  etc.  St.  Co.,  97 
Mass.  361  ;  Teerpenningw.  Corn  Ex.  Ins.  Co.,  43  N.  Y.  279.  This  is  es- 
pecially true  of  opinions  relating  directly  to  the  questions  of  law  or  fact 
at  issue  in  the  action.  These  are  questions  to  be  determined  by  court  or 
jury  from  i\\e  facts  in  evidence.     Id.  ;  see  Illustrations  (b)  and  (c).] 

^  [Besides  the  exceptions  stated  by  the  author,  the  following  are  recog- 


Chap,  v.]         THE  LAW  OF  EVIDENCE.  loi 


Illustrations, 
{a)  The  question  is,  whether  A,  a  deceased  testator,  was  sane  or  not 
when  he   made  his  will.     His  friends'  opinions  as  to  his  sanity,  as  ex- 


nized  :  (i)  The  subscribing  witnesses  to  a  will  may  state  their  opinions 
as  to  the  testator's  sanity  at  the  time  of  e.vecuting  the  will.  Egbert  v. 
Egbert,  78  Pa.  St.  326  ;  Hastings  v.  Riders,  99  Mass.  622  ;  Hewlett  v. 
Wood,  55  N.  Y.  635.  (2)  In  many  States,  witnesses  who  are  not  experts 
may  state  their  opinion  as  to  a  person's  sanity  or  insanity,  in  connection 
with  a  statement  of  the  facts  within  their  personal  knowledge,  upon 
which  that  opinion  is  based.  Conn.  Ins.  Co.  v.  Lathrop,  iii  U.  S.  612  ; 
Smith  V.  Hickenbottom,  57  la.  733  ;  Upstone  v.  People^  109  111.  169 ;  Hardy 
V.  Merrill,  56  N.  H.  227  ;  Chase  v.  Winans,  59  Md.  475  ;  Pidcock  v.  Pot- 
ter, 68  Pa.  St.  342  ;  State  v.  Harden,  51  Vt.  296 ;  Rice  v.  Rice,  50  Mich. 
448  ;  Baiighman  v.  Baitghman,  32  Kan.  538  ;  People  v.  VVreden,  59  Cal. 
392.  In  New  York  this  is  not  permissible,  but  the  witness  may  testify  to 
acts  and  declarations  known  or  observed  by  him,  and  characterize  them 
as  rational  or  irrational.  Holcomb  v.  Holcomb,  95  N.  Y.  316.  And  so  in 
Massachusetts  testimony  of  opinion  as  to  general  soundness  or  unsound- 
ness of  mind  is  not  received  from  non-experts,  but  the  questions  to  a 
witness  which  have  been  held  allowable  border  very  closely  upon  such 
an  inquiry.  May  v.  Dradlee,  127  Mass.  414 ;  Comtn.  v.  Brayman,  136 
Mass.  438.  (3)  So  generally  the  opinions  of  non-experts,  when  based 
upon  facts  known  and  observed  by  them,  are  admissible  as  to  many  mat- 
ters upon  which  men  in  general,  without  expert  training,  are  competent 
to  form  a  reliable  opinion.  If  only  the  facts  upon  which  such  opinions 
were  based  could  be  stated  to  the  jury,  such  facts  could  not  usually  be 
described  so  perfectly  as  to  enable  the  jury  to  form  a  just  conclusion  from 
them.  Such  testimony  of  opinion  is  received  as  to  a  person's  identity 
(^Stute  V.  Dickson,  78  Mo.  438  ;  People  v.  Rol/e,  61  Cal.  540)  ;  a  person's 
age  {Comm.  v.  O'Brien,  134  Mass.  198  ;  De  Witt  v.  Barly,  17  N.  Y.  340, 
344);  whether  a  person  was  drunk  or  sober  {Comm.  v.  Dowdican,  114  Mass. 
257  ;  Castner  v.  Sliker,  33  N.  J.  L.  507  ;  People  v.  Eastwood,  14  N.  Y.  562)  ; 
sick  or  well  {City  of  Phi  la.  v.  Gilmartin,  71  Pa.  St.  161;  Elliott  v.  I'an 
Buren^  -^1  Mich.  49  ;  Iligbce  v.  Life  Ins.  Co.,  53  N.  Y.  603  ;  but  not  as  to 
the  nature  of  a  sickness,  Shawneetown  v.  Mason,  82  111.  337)  ;  nervous,  or 
calm,  or  excited  (Dimick  v.  Doiuns,  82  111.  570)  ;  that  a  person  had  good 
eyesight  (Ada?ns  v.  People,  63  N.  Y.  621)  ;  that  a  horse  was  frightened 
{Darling  v.  Westmoreland,  52  N.  H.  401)  ;  and  many  like  matters.  See 
many  illustrations  given  in  Sydleman  v.  Beckwith,  43  Ct.  9 ;  Hardy  v.  Mer- 
rill, 56  N.  H.  227  ;  Comm.  v.  Sturtivant,  117  Mass.  122  ;  see  Illustrations 
(d)  and  (c).] 


102  A  DIGEST  OF  [Part  I. 


pressed  by  the  letters  which  they  addressed  to  him  in  his  lifetime,  are 
deemed  to  be  irrelevant.' 

{b)  [An  action  is  brought  to  recover  damages  for  a  tort  or  breach  of  con- 
tract. The  opinions  of  witnesses  as  to  the  amount  of  damage  sustained 
by  the  plaintiff  from  the  act  complained  of  are  deemed  to  be  irrelevant. 
The  jury  are  to  estimate  the  damages  from  ihe/iicts  proved.]  ^ 

(c)  [The  question  is  which  of  two  deeds  convey  a  greater  right.  A 
witness  cannot  be  examined  as  to  his  opinion  upon  this  point]  ^ 

{d)  [In  an  action  for  breach  of  promise  of  marriage  the  question  is 
whether  the  plaintiff  was  sincerely  attached  to  the  defendant. 

Witnesses  who  lived  with  the  plaintiff  during  the  courtship  and  ob- 
served her  deportment  may  give  in  evidence  their  opinions  upon  this 
question.]  ' 

{e)  [The  question  is,  upon  a  trial  for  murder,  whether  certain  hairs  are 
human  hairs  and  like  the  hair  of  the  deceased. 

Witnesses,  who  knew  the  deceased,  may  state  their  opinions  on  this 
point,  though  they  are  not  experts,]  = 


1  Wri^-ht  V.  Doe  d.  Tatfiam,  7  A.  &  E.  313  ;  [as  to  this  case,  see  Con}?. 
Ins.  Co.  V.  Lathrop,  iii  U.  S.  612,  622  ;  People  v.  Montgomery,  13  Abb. 
Pr.  (N.  S.)  207,  249.] 

2  [Morehouse  v.  Mathews,  2  N.  Y.  514;  Bissell  v.  West,  35  Ind.  54; 
Cleveland,  etc.  R.  Co.  v.  Ball,  5  O.  St.  568.  But  evidence  of  opinion  as 
to  the  value  of  houses,  lands,  chattels,  medical,  legal,  or  other  services, 
etc. ,  is  commonly  received  from  persons  having  special  knowledge  and 
experience  concerning  such  matters.  Hills  v.  Ho7ne  Ins.  Co.,  129  Mass. 
345  ;  Pittsbtirgh^  etc.  R.  Co.  v.  Robinson,  95  Pa.  St.  426  ;  Whiton  v.  Sny- 
der, 88  N.  Y.  299  ;  Whitney  v.  Thacher,  117  Mass.  523  ;  Reynolds  v.  Rob- 
inson, 64  N.  Y.  589.  This  is  commonly  regarded  as  e.xpert  testimony, 
though  it  has  been  said  that  it  is  not  such,  strictly  speaking,  as  respects 
the  value  of  property.     Swan  v.  Middlesex,  loi  Mass.  173. 

Evidence  of  opinion  has  been  received  as  to  the  value  of  land  both  be- 
fore and  after  an  injury  thereto,  or  a  taking  therefrom  by  eminent  do- 
main. Sexton  V.  N.  Bridgcwater,  116  Mass.  200  ;  Carter  v.  Thurston,  58  N. 
H.  104  ;  East  Pa.  R.  Co.  v.  Hottenstine,  47  Pa.  St.  28.  This  is  much  the 
same  as  giving  an  opinion  as  to  damages  in  such  cases.  Snow  v.  B.  &^  M. 
R.  Co.,  65  Me.  230.]. 

=*  [^Bennett  v.  Cletnence,    6  Allen,  10.] 

^  [McKee  v.  Nelson,  4  Cow.  355.] 

*  [Comm.  V.  Dorsey,  103  Mass.  412.] 


Chap,  v.]         THE  LAW  OF  EVIDENCE.  103 

Article  49. 
opinions  of  experts  on  points  of  science  or  art. 

When  there  is  a  question  as  to  any  point  of  science  or  art, 
the  opinions  upon  that  point  of  persons  specially  skilled  in  any 
such  matter  are  deemed  to  be  relevant  facts. 

Such  persons  are  hereinafter  called  experts. 

The  words  "  science  or  art  "  include  all  subjects  on  which  a 
course  of  special  study  or  experience  is  necessary  to  the  for- 
mation of  an  opinion,'  and  amongst  others  the  examination  of 
handwriting. 

When  there  is  a  question  as  to  a  foreign  law,  the  opinions  of 
experts  who  in  their  profession  are  acquainted  with  such  law 
are  the  only  admissible  evidence  thereof,  though  such  experts 
may  produce  to  the  Court  books  which  they  declare  to  be 
works  of  authority  upon  the  foreign  law  in  question,  which 
books  the  Court,  having  received  all  necessary  explanations 
from  the  expert,  may  construe  for  itself.' 


'  I  S.  L.  C.  555,  7th  ed.  (note  to  Carter  v.  Bochm)  ;  28  Vict.  c.  18,  s.  18. 
[Gr.  Ev.  i.  %  440 ;  Spring  Co.  v.  Edgar,  99  U.  S.  645,  657  ;  jfones  v. 
Tucker,  41  N.  H.  546;  Coyle  v.  Comm.,  104  Pa.  St.  117;  Muldoivncy  v. 
///.  Ce7t.  R.  Co.,  36  la.  462  ;  Ferguson  v.  Hubbell,  97  N.  Y.  507.  An  ex- 
pert may  not  only  testify  to  opinions,  but  may  state  general  facts  which 
are  the  result  of  scientific  knowledge.  Emerson  v.  Lowell  Gas  Co.,  6 
Allen,  146.  But  the  opinions  of  experts  are  not  admissible  upon  matters 
of  common  knowledge.  As  these  are  within  common  observation  and  ex- 
perience, the  jurors  are  deemed  qualified  to  judge  without  expert  aid. 
Fergwion  v.  Hubbell.^  supra  ;  Milwaukee  R.  Co.  v.  Kellogg,  94  U.  S.  469  ; 
Franklin  Ins.  Co.  v.  Griiver,  100  Pa.  St.  266  ;  Lttce  v.  Dorchester  Ins. 
Co.,  105  Mass.  297;  Knoll  v.  State,  55  Wis.  249  ;  see  Illustrations  (g)  and 
(h).  Nor,  in  general,  is  expert  testimony  received  as  to  the  very  point  in 
issue  in  the  case.  Seymour  v.  Fellows,  77  N.  Y.  180  ;  Buxton  v.  Somerset 
Works,  121  Mass.  446  ;  Noonan  v.  State,  55  Wis.  258  ;  Hughes  v.  Musca- 
tine, 44  la.  672.] 

^  Baron  de  Bodc's  Case,  8  Q.  B.  250-267  ;  Di  Sora  v.  Phillipps,  10  H.  L. 
624 ;   Castrii^ue  v.  Imrie,  L.    R.  4  E.   &  I.  App.  434  ;  see,   too,  Picton's 


I04  A  DIGEST  OF  [Part  I. 

It  is  the  duty  of  the  judge  to  decide,  subject  to  the  opinion 
of  the  Court  above,  whether  the  skill  of  any  person  in  the  mat- 


Case^  30  S.  T.  510-511.  [That  the  unwritten  or  common  law  of  other 
States  or  countries  may  be  proved  by  expert  testimony  is  well  settled  in 
this  country  {Mowry  v.  Chase,  100  Mass.  79  ;  Ennis  v.  Smith,  14  How.  (U. 
S.)4oo;  In  re  Roberts'  Will,  8  Pai.  446),  and  is  often  declared  in  statutes, 
which  also  generally  provide  that  in  proving  the  common  law  of  another 
State  or  Territory  in  the  U.  S.,  the  books  of  reports  of  cases  may  be 
given  in  evidence.  See  e.g.,  N.  Y.  Code  Civ.  Pr.  %  942  ;  Maine  Rev.  St., 
c.  82,  %^  108,  109 ;  Mass.  Pub.  St.,  c.  169,  §§  72,  73.  Sometimes  the  latter 
provision  is  also  e.xtended  to  the  law  of  foreign  countries.  Id.  ;  see  The 
Parrashick,  2  Low.  142. 

In  proof  of  foreign  written  law,  e.xpert  evidence  is  deemed  admissible 
in  some  States,  either  with  or  without  a  copy  of  such  law  (Barrows  v. 
Downs,  9  R.  I.  446  ;  Hall  v.  Costello,  48  N.  H.  176)  ;  but  sometimes 
statutes  provide  that  such  evidence  may  be  rejected,  unless  accompanied 
by  such  a  copy.  Pierce  v.  Indseth,  106  U.  S.  546  ;  see  statutes  supra. 
But  other  modes  of  proof  are  also  in  common  use,  as  by  an  officially 
printed  volume  of  the  law  or  a  duly  authenticated  copy  (see  Art.  84, 
post).  This  is  the  generally  established  mode  of  proving  the  statute  law 
of  Congress  or  of  the  sister  States  (see  Art.  81,  post).  But  an  expert  may 
testify  as  to  the  official  or  authoritative  character  of  the  printed  volume, 
etc.  Pacific  Gas  Co.  v.  Whcclock,  80  N.  Y.  278  ;  Hynes  v.  McDermott, 
82  N.  Y.  54  ;  Spaulding  v.   Vincent,  24  Vt.  501. 

The  expert  is  usually  a  lawyer,  but  the  testimony  of  other  persons 
acquainted  with  the  law  may  be  received  in  proper  cases.  Van  der  Donct 
v.  Thellusson,  8  C.  B.  812  ;  Pickard\.  Baily,  26  N.  H.  152  ;  Amer.  Life  Ins. 
Co.  V.  Rosenaglc^  77  Pa.  St.  507. 

Evidence  of  the  foreign  law  must  be  first  introduced  in  the  trial  court, 
not  in  the  appellate  court.  The  question  what  the  foreign  law  is  is  usu- 
ally deemed  a  question  of  fact,  unless  it  involves  merely  the  construction 
of  a  written  statute  or  judicial  opinion,  when  it  is  a  question  of  law. 
Hackett  V.  Potter,  135  Mass.  349  ;  Daincse  v.  Hall,  91  U.  S.  13.  In  the 
absence  of  proof  of  the  foreign  law  or  that  of  another  State,  the  law  of 
the  forum  is  usually  applied  {Savage  v.  G' Neil,  44  N.  Y.  298  ;  Rohards 
v.  Marley,  80  Ind.  185  ;  Marstcrs  v.  Lash,  61  Cal.  622)  ;  but  whether  the 
statute  law  of  the  forum  will  be  applied,  or  only  the  common  law,  see 
Carpenter  v.  G.  T.  R.  Co.,  T2  Me.  388  ;  Harris  v.  White,  81  N.  Y.  532, 
544 ;  Rogers  v.  Zook,  86  Ind.  237  ;  Ncese  v.  Farmers'  Ins.  Co.,  55  la.  604  ; 
see  Art.  58,  noie.,  post.^ 


Chap,  v.]  THE  LAW  OF  EVIDENCE.  105 

ter  on  which  evidence  of  his  opinion  is  offered  is  sufficient  to 
entitle  him  to  be  considered  as  an  expert. ' 

The  opinion  of  an  expert  as  to  the  existence  of  the  facts  on 
which  his  opinion  is  to  be  given  is  irrelevant,  unless  he  per- 
ceived them  himself.^ 

Illustrations, 
(a)  The  question  is,  whether  the  death  of  A  was  caused  by  poison. 


'  Rristow  V.  Sequeville,  6  Ex.  275  ;  Rowley  v.  L.  &^  N.  W.  Railway,  L. 
R.  G  Ex.  221.  In  the  Goods  of  Donclli,  L.  R.  I  P.  D.  69.  \Nelson  v.  Ins. 
Co. ,  71  N.  Y.  453 ;  Perkins  v.  Stickiiey,  132  Mass.  217  ;  Z).  tS^  C.  Tow- 
boat  Co.  V.  Starrs,  69  Pa.  St.  36.  The  witness  need  not  be  still  in  the 
practice  of  his  profession,  etc.     Roberts  v.  yohnson,  58  N.  Y.  613. 

The  opinion  of  an  expert  is  admissible  though  he  has  no  personal 
knowledge  of  the  facts  of  the  case.  But  in  the  question  asking  his  opin- 
ion, the  facts,  as  counsel  claim  them  to  exist,  should  then  be  stated  in 
hypothetical  form  ;  and  in  framing  the  question,  counsel  may  assume  such 
a  state  of  facts  as  the  evidence  fairly  tends  to  justify  (Stearns  v.  Field,  90 
N.  Y.  640  ;  Jcwett  v.  Brooks,  134  Mass.  505 ;  Pidcock  V.  Potter,  68  Pa.  St. 
127)  ;  but  in  cross-examination  counsel  need  not  be  so  restricted.  People 
V.  Aiigsbury,  97  N.  Y.  501.  This  rule  applies  even  though  the  witness 
has  heard  the  evidence  of  the  facts  as  given  by  prior  witnesses,  if  the 
facts  are  controverted  or  doubtful.  Guiterman  v.  Liverpool,  etc.  St.  Co., 
83  N.  Y.  358  ;  Dexter  v.  Hall,  15  Wall.  9 ;  Coyle  v.  Comm. ,  104  Pa.  St. 
117;  Woodbury  v.  Obear,  7  Gray,  467.  But  in  some  cases,  as  where  the 
facts  are  not  in  dispute,  or  the  evidence  heard  is  clear  and  plain  and  not 
difficult  to  bear  in  mind,  the  expert  may  be  asked  his  opinion  upon  what 
he  has  heard,  without  a  full  hypothetical  statement  of  the  facts.  Sey- 
mour V.  Fellows,  77  N.  Y.  178;  Hunt  v.  Lowell  Gas  Co.,  8  Allen,  169; 
State  V.  Klinger,  46  Mo.  224 ;  State  v.  Hayden,  51  Vt.  296  ;  see  Olmsted  v. 
Gere,  100  Pa.  St.  127.  And  where  the  expert  bases  his  opinion  upon  his 
knowledge  of  the  facts,  a  hypothetical  case  need  not  be  stated.  Mercer 
V.   Vose,  67  N.  Y.  56  ;  Bcllefontaine,  etc.  R.  Co.  v.  Bailey,  11  O.  St.  333.] 

2  I  Ph.  507;  T.  E.  s.  1278.  {Carpenter  v.  Eastern  Trans.  Co.,  71  N. 
Y.  574;  Kempsey  v.  McGintiis,  21  Mich.  123;  so  his  opinion  is  not  re- 
ceived as  to  the  effect  of  the  evidence  in  establishing  controverted  facts. 
Hunt  v.  Lowell  Gas  Co.,  8  Allen,  169;  see  Priest  v.  Groton,  103  Mass. 
530.  Nor  is  a  witness's  opinion  received  as  to  a  matter  of  legal  or  moral 
obligation.     Gr.  Ev.  i.  j  441.] 


io6  A  DIGEST  OF  {Part  I. 


The  opinions  of  experts  as  to  the  symptoms  produced  by  the  poison  by 
which  A  is  supposed  to  have  died,  are  deemed  to  be  relevant.' 

{b)  The  question  is,  whether  A,  at  the  time  of  doing  a  certain  act,  was, 
by  reason  of  unsoundness  of  mind,  incapable  of  knowing  the  nature 
of  the  act,  or  that  he  was  doing  what  was  either  wrong  or  contrary  to 
law. 

The  opinions  of  experts  upon  the  question  whether  the  symptoms 
exhibited  by  A  commonly  show  unsoundness  of  mind,  and  whether  such 
unsoundness  of  mind  usually  renders  persons  incapable  of  knowing  the 
nature  of  the  acts  which  they  do,  or  of  knowing  that  what  they  do  is 
either  wrong  or  contrary  to  law,  are  deemed  to  be  relevant  ^ 

(r)  The  question  is,  whether  a  certain  document  was  written  by  A. 
Another  document  is  produced  which  is  proved  or  admitted  to  have 
been  written  by  A. 

The  opinions  of  experts  on  the  question  whether  the  two  documents 
were  written  by  the  same  person,  or  by  different  persons,  are  deemed  to 
be  relevant.  3 

[d)  The  opinions  of  experts  on  the  questions,  whether  in  Illustration  (.?), 
A's  death  was  in  fact  attended  by  certain  symptoms  ;  whether  in  Illustra- 
tion [b),  the  symptoms  from  which  they  infer  that  A  was  of  unsound  mind 
existed  ;  whether  in  Illustration  (c),  either  or  both  of  the  documents  were 
written  by  A,  are  deemed  to  be  irrelevant. ■» 

{e)  [The  question  is,  whether  certain  blood-stains  have  been  caused  by 
human  blood  or  by  the  blood  of  animals. 

The  opinion  of  an  expert  that  some  of  the  stains  are  of  the  one  sort  and 
some  of  the  other  is  deemed  to  be  relevant.  ^ 

But  a  non-expert  may  give  evidence  that  stains  freshly  made  are  caused 
by  blood.]  « 

(/)  [The  question  is,  whether  certain  circumstances  affecting  property 
insured  are  material  to  the  risk. 


'  I?,  v.  Palmer  (^passim).  See  my  '  Gen.  View  of  Crim.  Law,"  357, 
[Stephens  v.  People,  4  Park.  Cr.  396.] 

^  J?.  V.  Dove  {passim).  Gen.  View  Crim.  Law,  391.  [See  People  v. 
Lake,  12  N.  Y.  358  ;  State  v.  Hayden,  51  Vt.  296.] 

2  28  Vict.  c.  18,  s.  8  ;  [see  Art.  52,  and  note.] 

••  [But  that  an  expert  may  testify  that  the  disputed  document  was  writ- 
ten by  A,  see  Costello  v.  Crowell,  133  Mass.  352 ;  see  Art.  52.] 

5  [Linsday  v.  People^  63  N.  Y.  143,  147,  156.] 

^  [Greenfield  \.  People^  85  N.  Y.  75;  in  AIcLam  v.  Comm.,  99  Pa.  St. 
86,  it  was  even  held  that  a  non-expert  might  testify  that  stains  were  made 
by  human  blood,  and  that,  too,  though  the  stains  were  not  freshly  made.] 


Chap,  v.]  THE  LAW  OF  EVIDENCE.  107 

The  opinions  of  experts  upon  the  materiality  of  these  circumstances 
are  deemed  to  be  relevant,  except  in  cases  where  an  ordinary  jury  would 
be  capable  of  determining  the  question.]' 

(f)  [The  question  is,  whether  a  railway  train  stopped  long  enough  at  a 
station  to  enable  passengers  to  get  off. 

The  opinion  of  an  expert  upon  this  question  is  deemed  to  be  irrele- 
vant.] 2 

{k)  [The  question  is,  on  a  trial  for  murder,  whether  a  certain  piece  of 
paper  has  the  appearance  of  wadding  shot  from  a  gun. 

The  opinion  of  an  expert  upon  this  point  is  deemed  to  be  irrelevant.]' 

Article  50. 

facts  bearing  upon  opinions  of  experts. 

Facts,  not  otherwise  relevant,  are  deemed  to  be  relevant  if 
they  support  or  are  inconsistent  with  the  opinions  of  experts, 
when  such  opinions  are  deemed  to  be  relevant.* 

Illiistrations. 

(a)  The  question  is,  whether  A  was  poisoned  by  a  certain  poison. 

The  fact  that  other  persons,  who  were  poisoned  by  that  poison,  exhib- 
ited certain  symptoms  which  experts  affirm  or  deny  to  be  the  symptoms 
of  that  poison,  is  deemed  to  be  relevant.^ 


'  {^Cornish  v.  Farm,  etc.  Ins,  Co.,  74  N.  Y.  295  ;  Dafiiels  v.  Hudson 
River  Ins.  Co. ,  12  Cush.  416  ;  Hartmaii  v.  Keystone  Ins.  Co. ,  21  Pa.  St. 
466  ;  but  the  cases  are  not  all  agreed  on  this  point  ;  see  Lyman  v.  State, 
etc.  Ins.  Co.,  14  Allen,  329 ;  yoyce  v.  Maine  Ins.  Co.,  45  Me.  168  ;  Kent's 
Comm.,  iii.  285.] 

'^[/Ccllcr  V.  /V.  Y.  C.  R.  Co.,  2  Abb.  Dec.  480  ;  see  .Milwaukee  R.  Co.  v. 
Kellogg,  94  U.  S.  469.] 

5  \Manke  v.  People,  17  Hun,  410  ;  78  N.  Y.  611.J 

*  [Lincoln  v.  Taunton  Mf'g  Co.,  9  Allen,  181  ;  Booth  v.  Cleveland  Mill 
Co.,  74  N.  Y.  15  ;  Tilton  v.  Miller,  66  Pa.  St.  388  ;  cf.  Doyle  v.  N.  Y. 
Infirmary,  80  N.  Y.  631 ;   Olmsted  v.  Gere,  100  Pa.  St.  127.] 

*  R.  V.  Palmer,  printed  trial,  p.  124,  etc.  In  this  case  (tried  in  1856) 
evidence  was  given  of  the  symptoms  attending  the  deaths  of  Agnes 
Senet,  poisoned  by  strychnine  in  1845,  Mrs.  Serjeantson  Smith,  similarly 
poisoned  in  1848,  and  Mrs.  Dove,  murdered  by  tlie  same  poison  subse- 
quently to  the  death  of  Cook,  for  whose  murder  Pahner  was  tried, 


io8  A  DIGEST  OF  [Part  I. 

{b)  The  question  is,  whether  an  obstruction  to  a  harbor  is  caused  by  a 
certain  bank.     An  expert  gives  his  opinion  that  it  is  not. 

The  fact  that  other  harbors  similarly  situated  in  other  respects,  but 
where  there  were  no  such  banks,'  began  to  be  obstructed  at  about  the 
same  time,  is  deemed  to  be  relevant. 

Article  51. 

opinion  as  to  handwriting,  when  deemed  to  be 
relevant. 

When  there  is  a  question  as  to  the  person  by  whom  any 
document  was  written  or  signed,  the  opinion  of  any  person 
acquainted  with  the  handwriting  of  the  supposed  writer  that  it 
was  or  was  not  written  or  signed  by  him,  is  deemed  to  be  a 
relevant  fact.' 

A  person  is  deemed  to  be  acquainted  with  the  handwriting 
of  another  person  when  he  has  at  any  time  seen  that  person 
write,'  or  when  he  has  received  documents  purporting  to  be 
written  by  that  person  in  answer  to  documents  written  by  him- 
self or  under  his  authority,  and  addressed  to  that  person,^  or 


1  Foulkes  V.  Chadd,  3  Doug.  157  ;  [cf.  Hawks  v.  Charle7noiit,  no  Mass. 
no.] 

2  [For  a  valuable  article  on  this  subject,  see  Am.  Law  Rev.,  xvi.  569.] 

=  [Having  seen  him  write  once  is  enough  ;  this  affects  the  weight,  not 
the  competency,  of  the  testimony.  Ha?nmond  v.  Varian,  54  N.  Y.  398  ; 
Comm.  V.  Nefus,  135  Mass.  533  ;  MciVair  v.  Cornjn. ,  26  Pa.  St.  388.  So  a 
person's  mark  may  be  proved  in  this  way.  St>-on^'s  Excrs.,  17  Ala.  706  ; 
Fo£-^  V.  Dennis,  3  Humpk.  47  ;  Jackson  v.  Van  Diisen,  5  Johns.  144  ; 
contra,  Shinkle  v.  Crock,  17  Pa.  St.  159.  But  a  person  who  sees  another 
write,  or  examines  his  handwriting,  expressly  for  the  purpose  of  being 
fible  to  testify,  is,  in  general,  an  incompetent  witness.  Reese  v.  Reese,  90 
Pa.  St.  89  ;  Board  of  Trustees  v.  JVusenheimer,  78  111.  22  ;  Hynes  v.  McDer- 
mott,  82  N.  Y.  41,  53.  A  witness  may  testify  as  to  handwriting  who  can- 
not read  or  write  himself.     Foye  v.  Patch,  132  Mass.  105.] 

4  {Chaffee  v.  Taylor,  3  Allen,  598  ;  Clark  v.  Freeman,  25  Pa.  St.  133  ; 
Cunningham  v.  Hudson  River  Bk. ,  21  Wend.  557 ;  Empire  Mf'g  Co.  v. 
Stuart,  46  Mich.  482.  But  this  is  sometimes  not  sufficient  authentication. 
McKcQne  v,  Barnes,  108  Mass.  344.     So  if  the  witness  has  received  letters 


Chap.  V.]         THE  LAW  OF  EVIDENCE.  109 

when,  in  the  ordinary  course  of  business,  documents  purport- 
ing to  be  written  by  that  person  have  been  habitually  submitted 
to  him.' 

Illustration. 

The  question  is,  whether  a  given  letter  is  in  the  handwriting  of  A,  a 
merchant  in  Calcutta. 

B  is  a  merchant  in  London,  who  has  written  letters  addressed  to  A,  and 
received  in  answer  letters  purporting  to  be  written  by  him.  C  is  B's 
clerk,  whose  duty  it  was  to  examine  and  file  B's  correspondence.  D  is 
B"s  broker,  to  whom  B  habitually  submitted  the  letters  purporting  to  be 
written  by  A  for  the  purpose  of  advising  with  him  thereon. 

The  opinions  of  B,  C,  and  D  on  the  question  whether  the  letter  is  in 
the  handwriting  of  A  are  relevant,  though  neither  B,  C,  nor  D  ever  saw 
A  write.* 

The  opinion  of  E,  who  saw  A  write  once  tvv'enty  years  ago,  is  also  rele- 
vant. 3 

Article  52. 

comparison  of  handwritings. 

Comparison  of  a  disputed  handwriting  with  any  writing 
proved  to  the  satisfaction   of  the  judge  to  be  genuine  is  per- 


or  other  writings  of  a  person,  who  has  afterwards,  by  words  or  acts,  ac- 
knowledged their  genuineness  (Gr.  Ev.  i.  §  577  ;  yohnsoti  v.  Daverne,  ig 
Johns.  134 ;  Snyder  v.  McKecvcr,  lo  Bradw.  i88)  ;  but  not  if  he  has  only 
seen  letters  to  strangers,  purporting  to  be  those  of  the  person  in  question. 
Pkila.  etc.  R.  Co.  v.  Hickman,  28  Pa.  St.  318;  Ntines  v.  Perry,  113 
Mass.  275  ] 

'See  Illustration  ;  \Titfordv.  A'nott,  2  Johns.  Cas.  211  ;  Comm.  v.  Smith, 
6  S.  &  R.  568.  Thus  public  officers  who  have  seen  many  official  docu- 
ments filed  in  their  office,  having  the  signature  of  a  certain  justice,  may 
testify  as  to  an  alleged  signature  of  his.  Rogers  v.  Ritter,  12  Wall.  317  ; 
Amherst  Bk.  v.  Root,  2  Met.  522  ;  Sill  v.  Reese,  47  Cal.  294.  As  to  signa- 
tures upon  ancient  writings,  a  person  may  testify  who  has  gained  his 
knowledge  by  inspecting  other  ancient  authentic  documents  bearing  the 
same  signature.      Jackson  v.  Brooks,  8  Wend.  426,  15  id.  iii.] 

"  Doe  V.  Snckcrmore,  5  A.  &  E.  705  (Coleridge,  J.)  ;  730  (Patteson,  J.)  ; 
739-40  (Denman,  C.  J.). 

'  R.  V.  Home  Tooke,  25  S.  T.  71-2  ;  [see  Brachmann  v.  Hall,  i  Disney, 
539] 


A  DIGEST  OF  [Part  I. 


mitted  to  be  made  by  witnesses,  and  such  writings,  and  the 
evidence  of  witnesses  respecting  the  same,  may  be  submitted 
to  the  Court  and  jury  as  evidence  of  the  genuineness  or  other- 
wise of  the  writing  in  dispute.  This  paragraph  applies  to  all 
courts  of  judicature,  criminal  or  civil,  and  to  all  persons  having 
by  law,  or  by  consent  of  parties,  authority  to  hear,  receive,  and 
examine  evidence.' 


'  17  &  18  Vict.  c.  125,  s.  27 ;  28  Vict.  c.  18,  s.  8.  [There  are  diverse 
rules  on  this  subject  in  different  States.  A  rule  substantially  like  the  En- 
glish rule  prevails  in  all  the  New  England  States,  in  New  York,  New  Jer- 
sey, Mississippi,  Texas,  Ohio,  Iowa,  and  Kansas.  Woodman  v.  Dana,  52 
Me.  9  ;  State  v.  Hastings,  53  X.  H.  452,  but  here  the  jury  judge  whether 
the  writing  used  as  a  standard  is  genuine;  State  \.  Ward,  39  Vt.  225; 
Costello  V.  Crowcll,  133  Mass.  352 ;  Pub.  St.  R.  I.,  c.  214,  $  42  ;  Tyler  v. 
Todd,  36  Ct.  218  ;  Peck  v.  Callaghan,  95  N.  Y.  73  ;  Laws  of  1880,  N.  Y. 
c.  36;  N.  J.  Rev.,  p.  381  ;  Koons  v.  State,  36  O.  St.  195  ;  Singer  Mfg. 
Co.  v.  AfcFarland,  53  la.  540  ;  Macomber  v.  Scott,  10  Kan.  335.  But  in 
many  States,  collateral  and  irrelevant  ^\Titings  cannot  be  introduced  for 
comparison  (  WiUiatns  v.  State,  61  Ala.  33  ;  First  Nat.  Bank  v.  Robert,  41 
Mich.  709  ;  Hazlcton  v.  Union  Bank^  32  Wis.  34 ;  State  v.  Clinton,  67  Mo. 
380  ;  Brobston  v.  Cahill,  64  111.  356  ;  Burress''  Case,  27  Gratt.  946  ;  Herrick 
v.  Su'omley,  56  Md.  439  ;  Hawkins  v.  Grimes,  13  B.  Mon.  260 ;  Yates  v. 
Yates,  76  N.  C.  143 ;  so  in  the  Federal  Courts,  U.  S.  v.  yones,  20  Blatch. 
235)  I  generally,  however,  in  these  States  genuine  writings  properly  in 
evidence  in  the  case  may  be  used  for  comparison  by  the  jury,  and  in  a 
number  of  them  such  comparison  may  be  made  by  experts  to  aid  the  jury. 
(Id.)  In  Indiana  comparison  may  be  made  by  experts  with  writings  ad- 
mitted to  be  genuine.  Shorb  v.  Kinzie,  80  Ind.  500.  In  Pennsylvania 
comparison  with  writings  proved  to  be  genuine  may  be  made  by  the  jury 
as  corroborative  evidence,  but  not  by  experts.  Berryhill  v.  Kirchner,  96 
Pa.  St.  489.  See  this  general  subject  fully  treated  in  Am.  Law  Rev. 
xvii.  21  ;  Gr.  Ev.  i.  ^ij  576-582. 

A  person's  signature  or  other  writing  made  in  court  at  the  trial  will  not 
generally  be  allowed  to  be  used  for  comparison.  Comm.  v.  Allen,  128 
Mass.  46  ;  Gilbert  v.  Simpson,  6  Daly,  29  ;  Williams  v.  State,  61  Ala.  33. 
But  this  is  sometimes  permitted  npon  cross-examination,  or  when  the 
writing  is  made  at  the  request  of  the  opposite  party  who  offers  it  for  com- 
parison. Chandler  v.  Le  Barron,  45  Me.  534 ;  Bronner  v.  Loomis,  14 
Hun,  341  ;  Kingy.  Donahue,  no  Mass.  155. 

Letterpress  copies  cannot  be  used  for  comparison.     Cohen  v.  Tdkr, 


Chap,  v.]         THE  LAW  OF  EVIDENCE.  iii 


Article  53. 

opinion  as  to  existence  of  marriage,  when  relevant. 

When  there  is  a  question  whether  two  persons  are  or  are  not 
married,  the  facts  that  they  cohabited  and  were  treated  by 
others  as  man  and  wife  are  deemed  to  be  relevant  facts,  and  to 
raise  a  presumption  that  they  were  lawfully  married,  and  that 
any  act  necessary  to  the  validity  of  any  form  of  marriage  which 
may  have  passed  between  them  was  done  ;  but  such  facts  are 
not  sufficient  to  prove  a  marriage  in  a  prosecution  for  bigamy 
or  in  proceedings  for  a  divorce,  or  in  a  petition  for  damages 
against  an  adulterer,' 


93  Pa.  St.  123  ;  Comm.  v.  Eastman,  I  Cush.  189.  But  photographic  copies 
may  be,  when  the  originals  are  also  before  the  court.  Hynes  v.  McDer- 
mott,  82  N.  Y.  41  ;  Marcy  v.  Barnes,  16  Gray,  162  ;  but  see  Tome  v.  Par- 
kersbnrgh,  etc.  R.  Co.,  39  Md.  36. 

Experts  in  handwriting  may  also  testify  to  other  matters;  as  e.g., 
whether  a  writing  is  forged  or  altered,  when  a  writing  was  probably  made, 
etc.      Travis  v.  Brown,  43  Pa.  St.  9  ;    Withce  v.  Rowe,  45  Me.  571.] 

'  Morris  v.  Miller,  4  Burr.  2057  ;  Birt  v.  Barlow^  I  Doug.  170  ;  and  see 
Catherwood  v.  Caslon,  13  M.  &  W.  261.  Compare  R.  v.  Maitnuariiig, 
Dear.  &  B.  132.  See,  too,  De  Thoreti  v.  A.  G.,  L.  R.  i  App.  Cas.  686  ; 
Piers  V.  Piers,  2  H.  &  C.  331.  Some  of  the  references  in  the  report  of 
De  Thoren  v.  A.  G.  are  incorrect.  This  article  was  not  expressed  strongly 
enough  in  the  former  editions.  [Ifynes  v.  McDermott,  91  N.  Y.  451  ; 
Greenaiualt  v.  McEnellcy.^  85  Pa.  St.  352  ;  Maryland  v.  Baldwin,  112  U.  S. 
490  ;  Proctor  v.  Bigelow,  38  Mich.  282  ;  Barman  v.  Barmtm,  42  Md.  251  ; 
Mass.  Pub.  St.,  c.  145,  s.  31.  Such  evidence  of  repute,  etc.,  has  been 
deemed  sufficient  in  bastardy  proceedings  {State  v.  Worthingham,  23 
Minn.  528),  but  not  in  prosecutions  for  bigamy,  incest,  adultery,  loose 
and  lascivious  cohabitation,  nor  in  actions  for  criminal  conversation. 
Hayes  v.  People,  25  N.  Y.  390 ;  State  v.  Roswell,  6  Ct.  446  ;  State  v.  Hodg- 
skins,  19  Me.  155  ;  Dann  v.  Kingdom,  i  T.  &  C.  492  ;  Comm.  v.  l.ittlejohn, 
IS  Mass.  163  ;  Hutchins  v.  Kimmcl,  31  Mich.  126.  But  in  some  States  it 
is  deemed  sufficient  in  divorce  suits.  Bishop,  M.  &  D.  ii.  §^  268,  274,  6th 
Ed.  ;  see  Collins  v.  Collins,  80  N.  Y.  10. 

A  marriage  may  generally  be  proved  by  admissions.  Miles  v.  State, 
103  U.  S.  304  ;    Womuck  v.   Tankersley,  78  Va.  242.] 


A  DIGEST  OF  [Part  1. 


Article  54. 
grounds  of  opinion,  when  deemed  to  be  relevant. 

Whenever  the  opinion  of  any  living  person  is  deemed  to  be 
relevant,  the  grounds  on  which  such  opinion  is  based  are  also 
deemed  to  be  relevant.^ 

Illustration. 
An  expert  may  give  an  account  of  experiments  performed  by  him  for 
the  purpose  of  forming  his  opinion.^ 


'  {^Hawkins  v.  Fall  River,  119  Mass.  94.] 

*  \^Eidt  V.  Cutler,  127  Mass.  522  ;  Sullivan  v.  Contm.,  93   Pa.   St.  28 
Linsday  v.  People,  63  N.  Y.  143,  156  ;  People  v.  Morgan,  29  Mich.  £.] 


Chap.  VI.]        THE  LAW  OF"  EVIDENCE.  113 


CHAPTER  VI.* 

CHARACTER,     WHEN   DEEMED    TO    BE    RELEVANT 
AND    WHEN   NOT. 

Article  55. 

character  generally  irrelevant. 

The  fact  that  a  person  is  of  a  particular  character  is  deemed 
to  be  irrelevant  to  any  inquiry  respecting  his  conduct,  except 
in  the  cases  mentioned  in  this  chapter. 

^  Article  56. 

evidence  of  character  in  criminal  cases. 

In  criminal  proceedings,  the  fact  that  the  person  accused 
has  a  good  character,  is  deemed  to  be  relevant ; '  but  the  fact 
that  he  has  a  bad  character  is  deemed  to  be  irrelevant,  unless 
it  is  itself  a  fact  in  issue,  or  unless  evidence  has  been  given 
that  he  has  a  good  character,  in  which  case  evidence  that  he 
has  a  bad  character  is  admissible.* 


»  See  Note  XXV. 

'  \Stover  V.  People,  56  N.  Y.  315  ;  Heine  v.  Comm. ,  91  Pa.  St.  145.  It 
is  generally  held  that  the  proof  must  be  of  good  character  in  respect  to 
the  trait  involved  in  the  charge.  People  v.  Fair,  43  Cal.  137 ;  State  v. 
Rloom,  68  Ind.  54  ;  Griffin  v.  State,  14  O.  St.  56  ;  State  v.  Ki7ig,  78  Mo. 
555 ;  see  Cancemi  v.  People,  16  N.  Y.  501 ;  Gr.  Ev.  iii.  %  25.  Such  evi-^ 
dence  is  now  generally  received,  whether  the  evidence  to  show  the  pris- 
oner's guilt  be  direct  or  circumstantial.  Id.;  Remsen  v.  People,  43  N.  Y. 
6  ;  State  v.  Rodman,  62  la.  456  ;  People  v.  Mead,  50  Mich.  228.] 

'  [People  v.  White,  14  Wend,  in  ;  ^tate  v.  Lapage,  57  N.  H.  245  ; 
People  V.  Fair^  43  Cal.  137.  For  additional  rules  in  criminal  cases,  see 
Art.  134, /t?j/,-  Art.  7,  note  2,  ante.l 


1 14  A  DIGEST  OF  [Part  I. 

'  In  this  article  the  word  "  character"  means  reputation  as 
distinguished  from  disposition,  and  evidence  may  be  given  only 
of  general  reputation  and  not  of  particular  acts  by  vv^hich  repu- 
tation or  disposition  is  shown.* 

Article  57, 

character  as  affecting  damages. 

In  civil  cases,  the  fact  that  the  character  of  any  party  to  the 
action  is  such  as  to  affect  the  amount  of  damages  which  he 
ought  to  receive,  is  generally  deemed  to  be  irrelevant.^ 


^  [Just  before  this  last  paragraph,  Mr.  Stephen  inserts  in  this  article 
the  following  special  statutory  rules  of  the  English  law  : 

"  When  any  person  gives  evidence  of  his  good  character  who — 

Being  on  his  trial  for  any  felony  not  punishable  with  death,  has  been 
previously  convicted  of  felony  ; 

Or  who,  being  upon  his  trial  for  any  offence  punishable  under  the 
Larceny  Act,  1861,  has  been  previously  convicted  of  any  felony,  misde- 
meanor, or  offence  punishable  upon  summary  conviction  ; 

Or  who,  being  upon  his  trial  for  any  offence  against  the  Coinage  Of- 
fences Act,  1861,  or  any  former  Act  relating  to  the  coin,  has  been  pre- 
viously convicted  of  any  offence  against  any  such  Act ; 

The  prosecutor  may,  in  answer  to  such  evidence  of  good  character, 
give  evidence  of  any  such  previous  conviction,  before  the  jury  return 
their  verdict  for  the  offence  for  which  the  offender  is  being  tried.  (7  &  8 
Geo.  IV.  c.  28,  s.  II,  amended  by  6  and  7  Will.  IV.  c.  iii.  If  'not  punish- 
able with  death  '  means  not  so  punishable  at  the  time  when  7  &  8  Geo. 

IV.  c.  28  was  passed  (21  June  1827),  this  narrows  the  effect  of  the  article 
considerably  ;  24  &  25  Vict.  c.  96,  s.  116  ;  c.  99,  s.  37.)"] 

2  J?,  v.  Rowton,  I  L.   &  C.  520.     R.  v.   Tttrberfield,   I  L.  &  C.  495,  is  a 

case  in  which  the  character  of  a  prisoner  became  incidentally  relevant 

*to  a  certain  limited  extent.     \Comm.  v.  O'Brien,  119  Mass.  342  ;  Snyder 

V.  Comm. ,  85  Pa.  St.  519  ;  State  v.  Lapage,  57  N.  H.  245  ;  the  reputation 
of  a  person  must  be  that  in  his  own  community.  Conkey  v.  People,  i  Abb. 
Dec.  418.] 

'  In  I  Ph.  Ev.  504,  etc.,  and  T.  E.  s.  333,  all  the  cases  are  referred  to. 

The  most  important  are  v.  Moor,  i  M.  &  S.  284,  which  treats  the 

evidence  as  admissible,  though  perhaps  it  does  not  absolutely  affirm  the 


Chap.  V I . ]        THE  LAW  OF  E VIDENCE.  1 1 $ 

proposition  that  it  is  so  ;  and  yones  v.  Stez'etts,  ii  Price,  235,  see  especially 
pp.  266,  268,  which  decides  that  it  is  not.  [The  latest  case  is  Scott  v- 
Sampson,  cited  post  in  this  note.]  The  question  is  now  rendered  com- 
paratively unimportant,  as  the  object  for  which  such  evidence  used  to  be 
tendered  can  always  be  obtained  by  cross-examining  the  plaintiff  to  his 
credit. 

[Evidence  of  a  party's  character  is  generally  incompetent  in  civil  ac- 
tions (Gr.  Ev.  i.  $  55  ;  Wh.  Ev.  i.  ^  47).  Thus  in  an  action  for  assault 
and  battery,  the  plaintiff's  bad  character  cannot  be  proved  (Corning  w. 
Corning,  6  N.  Y.  97  ;  Bruce  v.  Priest,  5  Allen,  100),  nor  the  defendant's 
good  character  (Brown  v.  Evans,  17  F.  R.  912  ;  Elliott  v.  Russell,  92  Ind. 
526)  ;  nor  the  plaintiff's  bad  repute  in  an  action  for  the  seduction  of  his 
daughter  [Dain  v.  IVyckoff,  18  N.  Y.  45)  ;  nor  that  of  a  party  to  a  note 
in  an  action  thereon  {Battles  v.  Latideiislager,  84  Pa.  St.  446)  ;  nor  the 
defendant's  character  for  care  and  prudence  in  an  action  for  negligence. 
Tenney  v.  Tuttle,  I  Allen,  185  ;  Hays  v.  Millar,  77  Pa.  St.  238.  So  evi- 
dence of  the  defendant's  good  character  is  not  admissible  in  his  behalf  in 
a  civil  action,  even  though  he  be  charged  with  fraud  [Gough  v.  St.  John, 
16  Wend.  646  ;  Boardmaii  v.  Woodman,  47  N.  H.  120;  Simpson  v.  West- 
enberger,  28  Kan.  756)  ;  nor  generally  can  the  good  character  of  any  party 
or  person  interested  in  the  action  be  shown,  e.xcept  in  answer  to  impeach- 
ing evidence  from  the  other  side.  Pratt  v.  Andrews,  4  N.  Y.  493  ;  Chubb 
V.   Gsell,  34  Pa.  St.  114  ;  see  Mosley  v.  Ins.  Co.,  55  Vt.  142. 

But  in  some  cases  the  question  of  character  is  involved  in  the  nature 
of  the  action,  and  evidence  of  general  reputation  is  received.  Thus  in 
actions  for  libel  or  slander,  evidence  may  be  given  of  the  plaintiff's  gen- 
eral bad  reputation,  in  mitigation  of  damages  (Hamcr  v.  McP'arlin,  4 
Den.  509  ;  Drown  v.  .4llen,  91  Pa.  St.  393  ;  Bathrick  v.  Detroit  Post  Co., 
50  Mich.  629 ;  Gr.  Ev.  ii.  §  424 ;  and  now  in  England  this  doctrine  is  ap- 
proved, Scott  v.  Sampson,  8  Q.  B.  D.  491)  ;  but  not  that  reports  were  in 
circulation  charging  him  with  the  act  imputed  {Ketmedy  v.  Gifford,  19 
Wend.  296 ;  Pease  v.  Shippen,  80  Pa.  St.  513  ;  Mahotiey  v.  Belford,  132 
Mass.  393;  Scott  \.  Sampson.,  supra  ;  contra.  Case  v.  Marks,  20  Ct.  248), 
at  least  if  the  defendant  did  not  kno\r  of  such  reports  when  he  made  the 
charge  {Hatfield  v.  Lasher,  81  N.  Y.  246  ;  Lothrop  v.  Adams,  133  Mass. 
471) ;  nor  can  particular  acts  of  misconduct  be  proved  {McLaughlin  v. 
Conley,  131  Mass.  70  ;  Scott  v.  Sampson,  supra)  ;  nor  can  the  defendant 
prove  his  own  bad  character.  Hastings  \ .  Stetson,  130  Mass.  76.  So  in 
an  action  for  malicious  prosecution,  plaintiff's  general  bad  repute  maybe 
shown  to  reduce  the  damages  (Gregory  v.  Chambers,  78  Mo.  294  ;  Fitz- 
gibbon  V.  Brown,  43  Me.  169)  ;  and  sometimes  such  evidence  is  received  as 
affecting  the  existence  of  probable  cause  (Gr.  Ev.  ii.   ^  458).     In  actions 


ii6  A  DIGEST  OF  [Part  I, 

for  criminal  conversation,  seduction,  breach  of  promise  of  marriage,  and 
indecent  assault,  the  woman's  bad  reputation  for  chastity  may  be  proved. 
Van  Storch  v.  Griffi7i,  71  Pa.  St.  240  ;  Paddock  v.  Salisbury,  2  Cow.  811, 
814 ;  Doubet  v.  Kirkman,  15  Bradw.  622  ;  Hogdn  v.  Cregan,  6  Rob.  138 ; 
Mitchell  V.  Work,  13  R.  I.  645  ;  as  to  proof  of  specific  acts  of  unchastity 
in  such  cases,  see  Id.;  Art.  134,  xioiQ,  post ;  Gr.  Ev.  ii.  §$  56  and  579  ;  as  to 
rumors,  see  Healy  v.  O' Sullivan,  6  Allen,  114.  As  to  proving  the  charac- 
ter of  a  witness,  see  Art.  133,  post. 

"  Character  "  in  this  article  and  note  means  general  reputation  (except 
as  otherwise  stated).  Usually  the  reputation  proved  concerns  the  par- 
ticular trait  involved  in  the  cause  of  action  (see  cases  supra),  but  some- 
times evidence  of  general  moral  character  is  also  received.  Clark  v. 
Brown,  116  Mass.  504,  slander  case  ;  Duvalv.  Davcy,  32  O.  St.  604,  612  ; 
see  Root  v.  King,  7  Cow.  613,  4  Wend.  113.] 


Chap.  V 1 1 .  ]      THE  LAW  OF  E  VIDENCE.  1 1 7 


PART  II. 

ON    PROOF. 

CHAPTER   VII. 

FACTS  PROVED  OTHERWISE    THAN  BY  EVIDENCE- 
JUDICIAL  NOTICE. 

Article  58.* 

of  what  facts  the  court  takes  judicial  notice. 

It  is  the  duty  of  all  judges  to  take  judicial  notice  of  the  fol- 
lowing facts  : — 

(i)  All    unwritten   laws,    rules,    and    principles   having   the 
force  of  law  administered  by  any  Court  sitting  under  the  au- 


See  Note  XXVI. 


[It  is  the  duty  of  courts  in  this  country  to  take  judicial  notice  of  the 
following  facts  : 

(i)  The  common  law  and  public  statute  law  of  their  own  State,' 


'  \^Shaw  V.  Tobias,  3  N.  Y.  188  ;  Unity  v.  Burrage,  103  U.  S.  447  ;  so  of 
the  law  merchant  {Reedv.  Wilson,  41  N.  J.  L.  29)  ;  of  the  charter  of  a 
municipal  corporation,  being  a  public  statute  {Stier  v.  Oskaloosa,  41  la. 
353  ;  Winooski  v.  Gokey,  49  Vt.  282  ;  in  some  States  all  acts  of  incorporation 
are  public  laws,  Mass.  Pub.  St.,  c.  169,  $  68  ;  State  v.  McAllister,  24  Me. 
139)  ;  of  the  laws  of  the  antecedent  government  when  there  has  been  a 
union  or  division  of  states  or  countries  {U.  S.  v.  Perot,  98  U.  S.  428  ; 
Stokes  v.  Macketr,  62  Barb.  145)  ;  but  not  of  private  statutes  (  Tunlow  v.  P. 
&'  R.  R.  Co.,  99  Pa.  St.  284),  unless,  as  often  now  happens,  a  special  law 
authorizes  it  (Railroad  Co.  v.  Bank  0/  Ashland,  12  Wall.  226  ;  see  N.  Y. 
Code  Civ.  Pr.  $  530)  ;  nor  of  municipal  ordinances.  Porter  v.  Waring,  69 
N.  Y.  250  ;   Chicago,  etc.  R.  Co.  v.  Klauber,  9  Bradw.  613.] 


iia                               A  DIGEST  OI^                    [Part  II.  j 

i 

thority  of  Her  Majesty  and    her    successors    in    England    or  ' 

Ireland,    whatever    may    be    the    nature    of   the   jurisdiction  < 

thereof.'  •! 

(2)  All  public  Acts  of  Parliament,'  and  all  Acts  of  Parlia-  .'. 

ment  whatever,  passed  since  February  4,  1851,  unless  the  con-  ■ 
trary  is  expressly  provided  in  any  such  Act.* 


'  Ph.  Ev.  460-1 ;  T.  E.  s.  4,  and  see  36  &  37  Vict.  c.  66  (Judicature  Act 
of  1873),  s.  25. 

2  13  &  14  Vict.  c.  21,  ss.  7,  8,  and  see  (for  date)  caption  of  session  of  14 
&  15  Vict. 

but  not  the  law  of  any  other  State  or  country  ; '  but  the  judges  of  the 
Federal  Courts  take  notice  of  the  public  laws  of  each  State,  when  such 
laws  are  properly  applicable  to  cases  heard  before  them,^  and,  in  like 
manner,  general  acts  of  Congress  will  be  noticed  in  State  courts. ' 

(2)  The  existence  of  the  legislature,  the  time  and  place  of  its  ses- 
sions, its  usual  course  of  proceeding,  and  the  privileges  of  its  members,* 
but  not  the  transactions  in  its  journals.* 

(3)  General  customs  observed  in  the  transaction  of  business,® 


>  \Monroe  v.  Douglas,  5  N.  Y.  447  ;  see  Art.  49,  note  2,  ante ;  but  the 
laws  of  one  State  have  been  noticed  in  another  in  which  acts  or  judgments 
based  on  such  laws  have  been  declared  by  its  own  laws  or  the  laws  of 
Congress  to  be  valid.  Carpenter  v.  Dexter,  8  Wall.  513 ;  Paine  v.  Ins, 
Co.,  II  R.  I.  411 ;   Ohio  v.  Hinchman,  27  Pa.  St.  479.] 

^  [Lamar  V.  Micou,  114  U.  S.  218.] 

5  [Kessel  v.  Albetis,  56  Barb.  362  ;  Bird  v.  Cotnm. ,  21  Gratt.  800.] 

*  [Or.  Ev.  i.  $  6 ;  Coleman  v.  Dobbins,  8  Ind.  156, 162.  Thus  the  courts 
will  notice  which  of  two  bodies  of  men  is  the  rightful  legislature,  when 
each  claims  the  right  (Opinion  of  Justices,  70  Me.  609).  The  doings  of 
the  executive  and  legislative  departments  of  the  government  will  be 
noticed.     Id.,  Prince  \.  Skillin,  71  Me.  361.] 

'  [Grob  V.  Cushman,  45  111.  119;  Burt  v.  Winona,  etc.  R.  Co.,  31  Minn. 
472  ;  Coleman  v.  Dobbins,  8  Ind.  156.  But  it  is  also  held  that  the  courts 
will  take  notice  of  such  journals,  in  order  to  determine  the  validity  of  a 
statute.  People  v.  Mahattey,  13  Mich.  481  ;  Divisio?i  0/  Howard  Co.,  15 
Kan.  194;  Moody  y.  State,  48  Ala.  115;  cf.  Gardners.  Collector,  GV^zW. 
499  ;  but  see  People  v.  Devlin,  33  N.  Y.  269.] 

»  [Cameron  v,  Blackman,  39  Mich.  108  ;  Merchants'  Nat.  Bank  v.  Hall, 


Chap.  VII.]      THE  LAW  OF  EVIDENCE.  119 

(3)  The  general  course  of  proceeding  and  privileges  of  Par- 
liament and  of  each  House  thereof,  and  the  date  and  place  of 
their  sittings,  but  not  transactions  in  their  journals.' 

(4)  All  general  customs  which  have  been  held  to  have  the 
force  of  law  in  any  division  of  the  High  Court  of  Justice  or  by 
any  of  the  superior  courts  of  law  or  equity,  and  all  customs 


'  Ph.  Ev.  460  ;  T.  E.  s.  5. 


(4)  The  course  of  proceeding  and  all  rules  of  practice  in  force  in  the 
court  itself  ; '  its  own  record  books  and  entries  therein  ;  ^  the  other 
courts  established  by  law  in  the  same  State,  their  judges,  extent  of 
jurisdiction  and  course  of  proceeding;^  and  appellate  courts  will  take 
judicial  notice  of  the  rules  and  methods  of  practice  in  inferior  courts 
when  reviewing  their  judgments  or  decrees.* 

(5)  The  official  status  and  signatures  of  officers  of  the  court,  as 
attorneys,  clerks  of  court,  etc.^ 


83  N.  Y.  338.  In  this  last  case,  the  court  took  notice  of  the  practice  of 
banks  to  grant  renewals  of  obligations  upon  payment  of  a  new  discount. 
See  American  Nat.  Bank  v.  Bushey,  45  Mich.  135.] 

'  [Wh.  Ev.  i.  $  324.  The  terms  of  court  are  noticed,  Kidder  v.  Blais- 
dell,  45  Me.  461  ;  Rodders  v.  State,  50  Ala.  102.  But  not  the  pendency  of 
another  action  in  the  same  or  another  court.  Eyster  v.  Gaff,  91  U.  S. 
521  ;  Lake  Merced  Co.  v.  Cowles,  31  Cal.  215.] 

'  \^FelUrs  v.  Lee,  2  Barb.  488  ;  Robinson  v.  Brown,  82  III.  279;  see  Baker 
V.  Mygatt,  14  la.  131.] 

'  \_Cotnin.  v.  Desmond.,  103  Mass.  447  ;  Hatcher  v.  Rocheleaii,  18  N.  Y. 
86,90;  Kennedy  v.  Comm.,  78  Ky.  447;  Kilpatrickv.  Comm.,  31  Pa.  St. 
198.  This  last  case  holds  that  the  superior  courts  will  take  notice  who  are 
the  judges  of  the  inferior  state  tribunals, — which  by  common  law  was  a 
doubtful  question.     See  Gr.  Ev.  i.  §  6,  note.] 

*  {March  v.  Comm.,  12  B.  Mon.  25  ;  Contee  v.  Piatt,  9  Md.  ()j  ;  but  see 
Cutter  v.  Caruthers,  48  Cal.  178  ;  Cherry  v.  Baker,  17  Md.  75.  These 
matters  are  often  now  governed  by  statutes,  which  would  be  noticed 
under  (i)  supra.'\ 

'  [People  V.  Afevins,  I  Hill,  154  ;  Mackinnon  v.  Barnes,  66  Barb.  91  ; 
Hall  v.  Lawrence,  21  La.  Ann.  692  ;  Alderson  v.  Bell,  9  Cal.  315.  Thus 
the  signature  of  an  attorney,  admitting  service  of  papers,  will  be  noticed. 
Ripley  v.  Burgess,  2  Hill,  360.] 


A  DIGEST  OF  [Part  II. 


which  have  been  duly  certified  to  and  recorded  in  any  such 
court.' 

(5)  The  course  of  proceeding  and  all  rules  of  practice  in  force 
in  the  Supreme  Court  of  Justice.  Courts  of  a  limited  or  infe- 
rior jurisdiction  take  judicial  notice  of  their  own  course  of  pro- 


'  The  old  rule  was  that  each  Court  took  notice  of  customs  held  by  or 
certified  to  it  to  have  the  force  of  law.  It  is  submitted  that  the  effect  of 
the  Judicature  Act,  which  fuses  all  the  Courts  together,  must  be  to  pro- 
duce the  result  stated  in  the  text.  As  to  the  old  law,  see  Piper  v.  Chappell^ 
14  M.  &  W.  649-50.  Ex  parte  Powell,  In  re  Matthews,  L.  R.  i  Ch.  D. 
505-7,  contains  some  remarks  by  Lord  Justice  Mellish  as  to  proving  cus- 
toms till  they  come  by  degrees  to  be  judicially  noticed. 

(6)  The  political  constitution  of  their  own  government ;  the  acces- 
sion of  the  President  of  the  United  States  or  of  the  executive  of  the 
State,  and  their  signatures  ; '  the  official  status  of  the  chief  public 
officers  of  the  United  States  or  of  the  State,  as  e.g.  cabinet  officers, 
foreign  ministers,  senators,  and  the  like, ^ — also  of  sheriffs  and  marshals 
(and  their  signatures)  ''but  not  of  their  deputies.'* 

(7)  The  existence  and  title  of  every  State  and  sovereign  recognized 
by  the  national  government ;  ^  also  their  public  seals  when  attached  to 
public  acts,  decrees,  judgments,  or  other  official  documents.* 


'  \yount\.  Hotvcll,  14  Cal.  465;  IVells  v.  Company,  47  N.  H.  235  ^ 
State  v.    lVillia7>is,  5  Wis.  308.] 

2  [Major  V.  State,  2  Sneed,  11  ;  York,  etc.  P.  Co.  v.  Winans,  17  How. 
(U.  S. )  30;  see  Brown  v.  Piper,  91  U.  S.  37,  42.] 

3  [Thompson  v.  Haskell,  21  111.  215  ;  Ingram  v.  State,  27  Ala.  17.  Some 
cases  say  that  notice  will  be  taken  of  all  county  officers  (Farley  v.  McCon- 
fiell,  7  Lans.  428  ;  Himmelmann  v.  Hoadley,  44  Cal.  213),  at  least  if  the 
court  sits  therein.  Thielmaiin  v.  Bitr^,  73  111.  293.  So  notice  has  been 
taken  of  justices  and  aldermen.     Fox  v.  Comm.  81*  Pa.  St.  511.] 

^  [Gr.  Ev.  i.  $  6  ;  Ward  v.  Henry,  19  Wis.  76  ;  contra,  Him?nelmann  v. 
Hoadley,  44  Cal.  213.] 

^  [Gr.  Ev.  i.  $  4  ;  the  recognition  must  be  by  the  executive  branch  of 
the  government,  before  the  courts  will  take  such  judicial  notice.  Gelston 
V.  Hoyt,  13  Johns.  561,  587,  3  Wheat.  249.] 

«  [Lazier  V.  Westcott,  26  N.  Y,  146  ;  GriswQld  v,  Pitcairn,  2  Ct.  85; 
Cpit  v.  Mi(likcn,  I  Den.  376.] 


Chap.  VII.]      THE  LAW  OF  EVIDENCE.  121 

ccdure  and  rules  of  practice,  but  not  of  those  of  other  courts 
of  the  same  kind,  nor  does  the  Supreme  Court  of  Justice  take 
judicial  notice  of  the  course  of  procedure  and  rules  of  practice 
of  such  Courts.' 

(6)  The  accession  and  (semdk)  the  sign  manual  of  Her  Maj- 
esty and  her  successors." 


'  I  Ph.  Ev.  462-3 ;  T.  E.  s.  19.  ^  i  Ph.  Ev.  458  ;  T.  E.  ss.  16,  12. 

(8)  The  law  of  nations  ;  *  foreign  admiralty  and  maritime  courts  and 
their  seals ; '  the  seals  of  notaries  public  ; '  the  seals  of  their  own 
State  and  of  the  United  States,  and  of  the  courts  thereof  which  have 
seals  ;  ^  but  not  the  seals  of  foreign  municipal  courts  or  of  foreign 
officers.  * 

(9)  Public  proclamations  by  the  executive  branch  of  the  government, 
as  of  war,  peace,  amnesty,  etc.,'  treaties  made  with  foreign  countries  ;'' 
executive  decrees  or  messages  of  a  public  nature  and  ordinances  of 
state  ;^  days  of  general  political  elections.^ 

(10)  The  extent  of  territory  included  within  their  own  State  or  with- 


-    '  [  T/ie  Scotia.  14  Wall.  170.] 

"  [T/iompson  v.  Stemart,  3  Ct.  171  ;  Mumfordv.  Bowne,  Anth.  N.  P.  56.J 

'  [^Pierce  v.  Indseth,  106  U.  S.  546  ;  Askcraft  v.  Chapman,  38  Ct.  230.] 

<  [t/.  S.  v.  Amedy,  11  Wheat.  392  ;  Delafield\.  Hand,  3  Johns.  310,  314; 
Williams  v.  Wilkes,  14  Pa.  St.  228.  The  seal  of  a  Federal  Court  will  be 
noticed  in  other  Federal  Courts  and  in  State  courts.  Turnbull  v.  Payson, 
95  U.  S.  418  ;  Adams  v.    Way,  33  Ct.  419.] 

'  [Dcla/eldv.  Hand,  supra  ;  Vandervoort  v.  Smith,  2Cai.  155  ;  Church  v. 
Hubbart,  2  Cr.  187.  These  rules  are  sometimes  modified  by  statutory 
provisions,  providing  how  foreign  records  shall  be  proved.  See  N.  Y. 
Code  Civ.  Pr.  $§  952-956.] 

•  [Armstrong  V.  U.  S.,  13  Wall.  154.] 

'  [Lacroix  Fils  v.  Sarrazin,  15  F.  R.  489.] 

^{I'urner's  Adm'r.,  49  Ala.  406,  411;  Wh.  Ev.  i.  $  317;  but  not 
the  orders  of  a  military  commander  {Burke  v.  Miltenberger,  19  Wall. 
519  ;  but  see  Canal  Co.  v.  Templcton,  20  La.  Ann.  141)  ;  nor  executive 
acts  of  a  private  nature,  affecting  persons  not  cftizens.  Dole  v.  Wilson^ 
16  Minn.  525.] 

'  \_State  V.  Miiinick,  15  la.  123.] 


A  DIGEST  OF  [Part  II. 


(7)  The  existence  and  title  of  every  State  and  Sovereign 
recognized  by  Her  Majesty  and  her  successors.' 

(8)  The  accession  to  office,  names,  titles,  functions,  and  when 
attached  to  any  decree,  order,  certificate,  or  other  judicial  or 
official  documents,  the  signatures  of  all  the  judges  of  the  Su- 
preme Court  of  Justice.^ 


'  I  Ph.  Ev.  460 ;  T.  E.  s.  3. 

2 1  Ph.  462 ;  T.  E.  19 ;  and  as  to  latter  part,  8  &  9  Vict.  c.  113,  s.  2,  as 
modified  by  36  &  ^n  Vict.  c.  66,  s.  76  (Judicature  Act  of  1873). 

in  the  national  domain  ; '  the  civil  divisions  of  the  country  or  State,  as 
into  States,  counties,  cities,  towns,  etc.  ;^  the  relative  positions  of  such 
divisions  in  the  State,  as  that  a  city  or  town  is  in  a  certain  county ;  ^ 
the  chief  geographical  features  of  the  State  ;  *  the  existence  of  war 
against  the  United  States ;  °  other  public  matters  directly  concerning 
the  general  government  of  the  State  or  country  ;  °  the  existence  of  for- 
eign countries  and  that  they  have  a  government  and  courts  and  a 
system  of  law  like  our  own.''     The  Federal   Courts  take  notice  of  the 


1  [Gr.  Ev.  i.  §  6  ;  State  v.  Dunnell,  3  R.  I.  127.] 

2  \Comvi.  V.  Desmond,  103  Mass.  445  ;  Chapman  v.  Wilder,  6  Hill,  475  ; 
Gooding  V.  Morgan,  70  111.  275.] 

s  [^People  V.  Suppiger^  103  111.  434  ;  State  v.  Powers,  25  Ct.  48  ;  Vander- 
•werker  v.  People,  5  Wend.  530 ;  so  notice  is  taken  that  a  town  is  not  with- 
in a  certain  distance  of  the  place  of  trial.  Hinckley  v.  Beckwith,  23  Wis. 
328.  Such  local  divisions  may  be  determined  by  public  statutes  and  be 
noticed  for  that  reason.      Branson  v.  Gleason,  7  Barb.  472.] 

«  [Lake  Co.  v.  Young,  40  N.  H.  420;  Note  to  10  Abb.  N.  C  117.  The 
population  of  counties  is  noticed  [Farley  v.  McConnell,  7  Lans.  428) ;  what 
rivers  in  the  State  are  navigable  {Browne  v.  Schofield,  8  Barb.  239 ;  Wood 
V.  Fowler,  26  Kan.  682)  ;  but  not  the  width  of  streets  or  sidewalks  in  a 
city  (Porter  v.  Waring,  69  N.  Y.  250)  ;  the  distance  between  great  cities 
in  different  States  has  been  noticed.  Pearce  v.  Langjit,  loi  Pa.  St.  507  ; 
but  see  Goodivin  v.  Appleton,  22  Me.  453.] 

5  [Swinnerton  v.  /ns.  Co.,  37  N.  Y.  174.] 

^  [Opinion  of  Justices,  70  Me.  609  ;  People  v.  Snyder,  41  N.  Y.  397 ;  as 
to  matters  affecting  the'  government  of  a  city,  see  Patten  v.  Elevated  R. 
Co.,  3  Abb.  N.  C.  306.] 

">  {Lazier  v.  Westcott,  26  N.  Y;  148  ;  Morse  v.  Hewett,  28  Mich.  481.] 


Chap.  VII.J      THE  LAW  OF  EVIDENCE.  123 


(9)  The  Great  Seal,  the  Privy  Seal,  the  seals  of  the  Superior 
Courts  of  Justice,'  and  all  seals  which  any  Court  is  authorized 
to  use  by  any  act  of  Parliament,"  certain  other  seals  mentioned 
in  Acts  of  Parliament,*  the  seal  of  the  Corporation  of  London,' 
and  the  seal  of  any  notary  public  in  the  Queen's  dominions,* 

'  The  Judicature  Acts  confer  no  seal  on  the  Supreme  or  High  Court  or 
its  divisions. 

2  Doe  V.  Edwards,  9  A.  &  E.  555.     See  a  list  in  T.  E.  s.  6. 

3 1  Ph.  Ev.  464  ;  T.  E.  s.  6. 

■•  Cole  V.  Slier ard,  11  Ex.  482.  As  to  foreign  notaries,  see  Earl'sTrutt, 
4  K.  &  J.  300. 


ports  of  the  United  Slates  in  which  the  tide  ebbs  and  flows,  and  of  the 
boundaries  of  the  several  States  and  judicial  districts.' 

(11)  Matters  which  must  have  happened  according  to  the  ordinary 
course  of  nature  ;'^  natural  and  artificial  divisions  of  time  ;  ^  the  mean- 
ing of  Englisii  words  and  common  abbreviations  ;■*  legal  weights  and 
measures  and  moneys  of  the  country ;  ^  matters  of  general  public  his- 
tory,^ but  not  those  of  mere  private  or  local  histoi-y  ;'  other  matters  of 


'  [Gr.  Ev.  i.  §  6  ;  Thorson  v.  Petersoti,  9  F.  R.  517 ;  so  of  internal 
revenue  districts.      U.  S.  v.  Jackson ,  104  U.  S.  41.] 

-  [IVood  V.  Ins.  Co.,  46  N.  Y.  421,  426  ;  Dixon  v.  Nichols,  39  111.  372; 
as  the  time  of  sunrise  or  sunset  on  a  certain  day  {People  v.  Ckee  Kee.,  61 
Cal.  404  ;  State  v.  Morris,  47  Ct.  179)  ;  and  the  succession  of  the  seasons. 
Ross  V.  Bosvjell,  60  Ind.  235.] 

5  [Wh.  Ev.  i.  %  335.  Thus  notice  is  taken  of  the  coincidence  of  days  of 
the  week  with  days  of  the  month.  Phila.  etc.  R.  Co.  v.  Lehman,  56  Md. 
209;  Mcintosh  v.  Lee,  57  la.  356;  Mechanics'  Bank  v.  Gilson,  7  Wend. 
460.] 

••  [^Lettahan  v.  People,  5  T.  &  C.  268  ;  State  v.  Intoxicating  Liquors,  73 
Me.  278  (meaning  of  C.  O.  D.  noticed)  ;  Moseley  v.  Mastin,  37  Ala.  216 ; 
so  of  the  meaning  of  current  expressions  which  everyone  understands. 
Bailey  v.  Kalamazoo  Piib'g  Co.,  40  Mich.  251  ;  but  see  Baltimore  v.  State, 
15  Md.  376,  484.] 

'  [Gr.  Ev.  i.  $  5  ;  Johnston  v.  Hedden,  2  Johns.  Cas.  274.] 

"  [Thomas  v.  Stivers,  5  Pa.  St.  480  ;  Howard  v.  Moot,  64  N.  Y.  262 ;  as 
the  civil  war  in  this  country,  1861-65,  ^"d  its  duration.  Cross  v.  Saiin, 
13  F.  R.  308  ;  Turner  s  Adm'r.,  49  Ala.  406;  Swinnerton  v.  Ins.  Co..,  yj 
N.  Y.  174.]  7  [McA'innon  v.  Bliss,  21  N.  Y.  206.] 


124  A  DIGEST  OF  [Part  II. 

(lo)  The  extent  of  the  territories  under  the  dominion  of  Her 
Majesty  and  her  successors  ;  the  territorial  and  poUtical  divis- 
ions of  England  and  Ireland,  but  not  their  geographical  posi- 
tion or  the  situation  of  particular  places  ;  the  commencement, 
continuance,  and  termination  of  war  between  Her  Majesty  and 
any  other  Sovereign  ;  and  all  other  public  matters  directly 
concerning  the  general  government  of  Her  Majesty's  domin- 
ions.' 

(ii)  The  ordinary  course  of  nature,  natural  and  artificial  di- 
visions of  time,  the  meaning  of  English  words.* 

(12)  All  other  matters  which  they  are  directed  by  any  statute 
to  notice.' 


'  I  Ph.  Ev.  466,  460,  458  ;  and  T.  E.  ss.  15-16. 

2  I  Ph.  Ev.  465-6 ;  T.  E.  s.  14. 

^  E.^.,  the  Articles  of  War.     See  sec.  i  of  the  Mutiny  Act. 


such    general  and  public  notoriety  that  everyone  may  fairly  be  pre- 
sumed to  be  acquainted  with  them. ' 

(le)  Matters  of  general  knowledge  and  experience  within  their  juris- 
diction ;  ^  and  matters  which  they  are  directed  by  any  statute  to  no- 
tice.] 

'  [K'in^'V.  Galliin,  109  U.  S.  99  ;  Gilbert  \.  Flint,  etc.  /?.  Co.,  51  Mich. 
488;  as  the  ordinary  duration  of  human  life  {yohnson  v.  H.  R.  R.  Co., 
6  Duer,  634)  ;  the  usual  length  of  time  for  a  voyage  across  the  Atlantic 
{Oppenheijtt  v.  Wolf,  3  Sandf  Ch.  571)  ;  the  usual  time  to  run  trains 
between  prominent  cities  {Pearce  v.  Laugfit,  loi  Pa.  St.  507 ;  contra, 
Wiggins  V.  Burkhatn,  10  Wall.  129)  ;  the  practice  of  checking  baggage 
in  this  country  (Isaacson  v.  A''.  Y.  C.  R.  Co.,  94  N.  Y.  278)  ;  that  whiskey, 
brandy,  gin,  and  ale  are  intoxicating  (Rau  v.  People,  63  N.  Y.  277  ;  Eagan 
V.  State,  53  Ind.  162)  ;  but  not  that  all  malt  liquors  are  intoxicating.  Id.  ; 
Schlicht  V.  State,  56  Ind.  188.] 

"^[Howard  V.  Moot,  64  N.  Y.  262,  271  ;  Opinion  of  Justices,  70  Me.  609  ; 
as  e.g.,  the  result  of  an  election  affecting  the  organization  of  a  county. 
Andrews  v.  Knox  Co.,  70  111.  65.] 


Chap.  VII.]      THE  LAW  OF  EVIDENCE.  125 

Article  59. 

as  to  proof  of  such  facts. 

No  evidence  of  any  fact  of  which  the  Court  will  take  judicial 
notice  need  be  given  by  the  party  alleging  its  existence  ;  but 
the  judge,  upon  being  called  upon  to  take  judicial  notice 
thereof,  may,  if  he  is  unacquainted  with  such  fact,  refer  to  any 
person  or  to  any  document  or  book  of  reference  for  his  satis- 
faction in  relation  thereto,  or  may  refuse  to  take  judicial  notice 
thereof  unless  and  until  the  party  calling  upon  him  to  take 
such  notice  produces  any  such  document  or  book  of  reference.' 

Article  60. 

evidence  need  not  be  given  of  facts  admitted. 

No  fact  need  be  proved  in  any  proceeding  which  the  parties 
thereto  or  their  agents  agree  to  admit  at  the  hearing,  or  which 
they  have  admitted  before  the  hearing  and  with  reference 
thereto,  or  by  their  pleadings.'^  Provided  that  in  a  trial  for 
felony  the  prisoner  can  make  no  admissions  so  as  to  dispense 
with  proof,  though  a  confession  may  be  proved  as  against  him, 
subject  to  the  rules  stated  in  articles  21-24.' 


'  T.  E.  (from  Greenleaf)  s.  20.  E.g.,  a  judge  will  refer  in  case  of  need 
to  an  almanac,  or  to  a  printed  copy  of  the  statutes,  or  write  to  the  For- 
eign Office,  to  know  whether  a  State  had  been  recognized.  [Gr.  Ev.  i. 
9  6  ;  Secrist  v.  Petty,  109  111.  188  ;  Halls.  Brown,  58  N.  H.  95  ;  Siuhitttrtoti 
V.  Ins.  Co. ,  37  N.  Y.  174,  188  ;  State  v.  Wagner,  61  Me.  178  ;  State  v. 
Morris,  47  Ct.  179  ;  State  v.  Clare.,  5  la.  509.  But  a  judge  must  not  take 
judicial  notice  of  matters  merely  because  he  in  fact  knows  them.  Lena- 
han  V.  People,  5  T.  &  C.  268.] 

■■i  See  Schedule  to  Judicature  Act  of  1875,  Order  x.\.xii.  [Cutler  v. 
Wright,  22  N.  Y.  472;  Cunningham  v.  Smith's  Adm'r.,  70  Pa.  St.  450; 
Musselman  v.  Wise,  84  Ind.  248 ;  Miller  v.  Payne,  4  Bradw.  II2.]  The 
fact  that  a  document  is  admitted  does  not  make  it  relevant  and  is  not 
equivalent  to  putting  it  in  evidence,  per  James,  L.  J.,  in  Watson  v.  Rod- 
well,  L.  R.  II  Ch.  D.  150. 

3 1  Ph.  Ev.  391,  n.  6.  In  R.  v.  Thornhill,  8  C  &  P.  575,  Lord  Abinger 
acted  upon  this  rule  in  a  trial  for  perjury.     [Gr.  Ev.  iii.  $  39.) 


126  A  DIGEST  OF  [Part  II. 


CHAPTER   VIII. 
OF  ORAL  EVIDENCE. 

Article  6i. 

proof  of  facts  by  oral  evidence. 

All  facts  may  be  proved  by  oral  evidence  subject  to  the  pro- 
visions as  to  the  proof  of  documents  contained  in  Chapters 
IX.,  X.,  XI.    and  XII. 

Article  62.* 

ORAL  evidence   MUST   BE   DIRECT. 

Oral  evidence  must  in  all  cases  whatever  be  direct ;  that  is 
to  say — 

If  it  refers  to  a  fact  alleged  to  have  been  seen,  it  must  be 
the  evidence  of  a  witness  who  says  he  saw  it  ; 

If  it  refers  to  a  fact  alleged  to  have  been  heard,  it  must  be 
the  evidence  of  a  witness  who  says  he  heard  it ; 

If  it  refers  to  a  fact  alleged  to  have  been  perceived  by  any 
other  sense  or  in  any  other  manner,  it  must  be  the  evidence  of 
a  witness  who  says  he  perceived  it  by  that  sense  or  in  that 
manner  ; ' 

If  it  refers  to  an  opinion,  or  to  the  grounds  on  which  that 
opinion  is  held,  it  must  be  the  evidence  of  the  person  who 
holds  that  opinion  on  those  grounds." 


*  See  Note  XXVII. 
'  [See  Tcerpe7!ning\.  Corn  Ex.  his.  Co.,  43  N.  Y.  279  ;  Fassin  v.  Hub' 

*<2r^,  55N.  Y.  465.] 

2  [A  witness  may  testify  to  his  impression.^  if  this  is  based  upon  his  own 
observation  or  experience  or  recollection,  and  not  upon  hearsay  (Gr.  Ev. 


Chap.  IX.]        THE  LAW  OF  EVIDENCE.  12; 


CHAPTER  IX. 

OF    DOCUMENTARY   EVIDENCE— PRIMARY   AND 
SECONDARY,    AND  ATTESTED  DOCUMENTS. 

Article  63. 

proof  of  contents  of  documents. 

The  contents  of  documents  may  be  proved  either  by  primary 
or  by  secondary  evidence. 

Article  64. 

PRIMARY    evidence. 

Primary  evidence  means  the  document  itself  produced  for 
the  inspection  of  the  Court,  accompanied  by  the  production 
of  an  attesting  witness  in  cases  in  which  an  attesting  witness 


i.  $  440  ;  Blake  v.  People,  73  N.  Y.  586  ;  Higbie  v.  Guardian,  etc.  Ins.  Co., 
53  N.  Y.  603  ;  Rounds  V.  McCormick,  11  Bradw.  220;  Crowell  v.  West- 
ern, etc.  Bk.,  3  O.  St.  406;  State  v.  Donovan,  61  la.  278  ;  Duvall's  Excr. 
V  Darby,  38  Pa.  St.  56  ;  Khigsbury  v.  Moses,  45  N.  H.  222  ;  cf.  Mather 
V.  Parsons,  32  Hun,  338)  ;  or  to  his  intent  or  belief,  when  that  is  material 
in  the  case  {Bayliss  v.  Cockcroft,  81  N.  Y.  363;  Shockey  v.  Miles,  71 
Ind.  288  ;  Homans  v.  Corning,  60  N.  H.  418  ;  Recder  v.  Holcomb,  105  Mass. 
93  ;  Hamilton  v.  Nickerson,  13  Allen,  351),  but  not  to  a  conclusion  of  law. 
Wh.  Ev.  i.  $^  507,  509;  Nicolay  v.  Unger,  80  N.  Y.  54;  Ward  v.  Kilpat- 
rick,  85  N.  Y.  413;  Providetue  Tool  Co.  v.  U.  S.  Alf'g  Co.,  120  Mass. 
35  ;  yackson  v.  Benton,  54  la.  654. 

Objects  which  have  a  material  bearing  on  the  case  may  be  shown  to  the 
jury,  and  thus  have  the  effect  of  evidence  ;  as  the  weapon  or  instrument 
used  to  commit  a  crime,  bloody  garments,  a  person's  injured  limb,  etc. 
Wh.  Ev.  i.  ^^  345-347  ;  People  v.  Gonzalez,  35  N.  Y.  49  ;  A'ingv.  N.  Y.  C. 
R.  Co.,  72  N.  Y.  607.     So  a  person  may  be  produced  before  a  jury  to  en- 


128  A  DIGEST  OF  [Part  II. 

must  be  called  under  the  provisions  of  articles  66  and  67  ;  or 
an  admission  of  its  contents  proved  to  have  been  made  by  a 
person  whose  admissions  are  relevant  under  articles  15-20.' 

Where  a  document  is  executed  in  several  parts,  each  part 
is  primary  evidence  of  the  document :  "^ 

Where  a  document  is  executed  in  counterpart,  each  counter- 
part being  executed  by  one  or  some  of  the  parties  only,  each 
counterpart  is  primary  evidence  as  against  the  parties  execut- 
ing it.^ 


able  them  to  judge  as  to  his  being  a  minor.  Comm.  v.  Emmom:,  98  Mass.  6. 
And  photographs  of  persons  or  places  may  be  introduced  in  proper 
cases.  Udderzook's  Case,  76  Pa.  St.  340  ;  Blair  v.  Pclham,  118  Mass.  420 ; 
Cowley  V.  People,  83  N.  Y.  464.  But  whether  a  person  suing  for  personal 
injuries  can  be  required  by  the  court  to  submit  to  an  examination  by  phy- 
sicians is  a  matter  upon  which  the  authorities  are  conflicting  ;  that  he 
can,  see  Atchison,  etc.  R.  Co.  v.  Tlnd,  29  Kan.  466  ;  Turnpike  Co.  v.  Baily, 
^7  O.  St.  104;  White  \.  Milwaukee  R.  Co.,  61  Wis.  536;  Schroeder  v. 
Railroad  Co..,  47  la.  375  ;  that  he  cannot,  Roberts  v.  Ogdensburgh,  etc.  R. 
Co.,  29  Hun,  154;  L.oyd  V.  Hannibal,  etc.  R.  Co..,  53  Mo.  509;  in  suits 
for  divorce  because  of  impotence,  it  is  well  settled  that  the  court  has 
the  power.     Bishop,  M.  &  D.  ii.  $  590.J 

'  Slatterie  v.  Pooley^  6  M.  &  W.  664.  [This  doctrine  that  the  contents 
of  a  document  may  be  proved  by  a  party's  admissions  is  accepted  in 
several  States.  Loomis  \.  VVadhams,  8  Gray,  557;  Edgar  v.  Richardson, 
33  O.  St.  5S1 ;  Taylor  v.  Peck,  21  Gratt.  11  ;  Edwards  v.  Tracy,  62  Pa. 
St.  374  ;  Blackingtoti  v.  Rockland,  66  Me.  332  ;  cf.  Morrill  v.  Robinson, 
71  Me.  24.  But  in  New  York  it  is  rejected  {Sherman  v.  People,  13  Hun, 
575)  ■  though  such  evidence  is  receivable  if  the  document  is  lost  or  de- 
stroyed. Mandeville  v.  Reynolds,  68  N.  Y.  528,  537  ;  Cor  bin  v.  Jackson, 
14  Wend.  619  ;  see  Gr.  Ev.  i.  §  96 ;  Wh.  Ev.  ii.  §$  1091-1093.] 

^  [Each  of  several  duplicate  originals  is  primary  evidence.  Lewis  v. 
Payn,  8  Cow.  71 ;  Hubbard  v.  Russell,  24  Barb.  404  ;  Totten  v.  Bucy, 
57  Md.  446  ;  State  v.  Gurnec,  14  Kan.  in  ;  Gardner  v.  Eberhart,  82 
III.  316 ;  cf.  Crossman  v.  Crossman,  95  N.  Y.  145  ;  see  p.  139,  note, 
fost.  So  a  copy  may,  under  special  circumstances,  be  deemed  primary 
evidence.      Carroll  s.  Pcakc,  i  Pet.  18  ;    Clark  v.  Clark,  47  N.  Y.  664.] 

s  Roe  d.  West  v.  Davis.,  7  Ea.  362.  [Loring  v.  Whittemore,  13  Gray, 
228 ;  Nicoll  V.  Burke,  8  Abb.  N.  C.  213  ;  C.  &=  T.  R.  Co.  v.  Perkins,  17 
Mich.  296.] 


Chap.  IX.]        THE  LAW  OF  EVIDENCE.  129 

Where  a  number  of  documents  are  all  made  by  printing, 
lithography,  or  photography,  or  any  other  process  of  such  a 
nature  as  in  itself  to  secure  uniformity  in  the  copies,  each  is 
primary  evidence  of  the  contents  of  the  rest  ; '  but  where  they 
are  all  copies  of  a  common  original,  no  one  of  them  is  primary 
evidence  of  the  contents  of  the  original." 


Article  65. 

proof  of  documents  by  primary  evidence. 

The  contents  of  documents  must,  except  in  the  cases  men- 
tioned in  article  71,  be  proved  by  primary  evidence;'    and 


'  R.  V.  Watson,  2  Star.  129.  This  case  was  decided  long  before  the 
invention  of  photography ;  but  the  judgments  delivered  by  the  Court 
(EUenborough,  C.  J.,  and  Abbott,  Bayley,  and  Holroyd,  JJ.)  establish 
the  principle  stated  in  the  text.  [Wh.  Ev.  i.  ^^  70,  92  ;  see  Huff  v.  Ben- 
nett, 4  Sandf.  120  ;  Southwick  v.  Stevens,,  10  Johns.  443. 

When  a  telegram  is  to  be  proved,  the  primary  evidence,  in  contro- 
versies between  the  sender  and  the  company,  is  the  original  message 
delivered  for  transmission.  IV.  U.  Tel.  Co.  v.  Hopkins,  49  Ind.  223. 
But  when  a  contract  is  made  by  telegrams,  the  primary  evidence  to 
prove  the  contract  is  the  message  of  the  sender  as  delivered  to  the  re- 
ceiver and  the  answering  message  of  the  receiver  as  delivered  by  him 
to  the  office  for  transmission.  Ditrkee  v.  Vt.  R.  Co.,  29  Vt.  127  ;  Howley 
V.  Whipple,  48  N.  H.  487;  Wilson  v.  M.  &>  N.  R.  Co.,  31  Minn.  481  ; 
Saveland  v.  Green,  40  Wis.  431  ;  Smith  v.  Easton,  54  Md.  138  ;  see  cases 
collected  in  Oregon  Steamship  Co.  v.  Otis,  14  Abb.  N.  C  388.  So  in 
sending  directions  by  telegraph,  the  message  received  by  the  addressee 
is  primary  evidence.  Morgan  v.  People,  59  111.  58  ;  cf.  Comm.  v.  Jeffries, 
7  Allen,  548.] 

"  Noden  v.  Afiirray,  3  Camp.  224.  [Letter-press  copies  of  documents 
are  secondary  evidence  (Fool  v.  Bentley,  44  N.  Y.  166;  Marsh  v.  Hand, 
35  Md.  123  ;  Comm.  v.  yeffries,  7  Allen,  548  ;  King  v.  Worthington,  73 
111.  161)  ;  so  of  photographic  copies.  Duffln  v.  People.,  107  111.  113 ; 
Leathers  v.  Salvor  Co. ,  2  Woods,  680 ;  Maclean  v.  Scripps,  52  Mich. 
214.] 

=  [Gr.  Ev.  i.  %  82-88  ;  Wh.  Ev.  i.  ^  60-160.] 


130  A  DIGEST  OF  [Part  II. 

in  the  cases  mentioned  in   article  66  by  calling  an  attesting 
witness.' 

Article  66.* 

proof  of  execution  of  document  required  by  law 
to  be  attested, 

If  a  document  is  required  by  law  to  be  attested,"  it  may  not 
be  used  as  evidence  (except  in  the  cases  mentioned  or  re- 
ferred to  in  the  next  article)  if  there  be  an  attesting  witness 
alive,  sane,  and  subject  to  the  process  of  the  Court,  until  one 
attesting  witness  at  least  has  been  called  for  the  purpose  of 
proving  its  execution.' 

If  it  be  shown  that  no  such  attesting  witness  is  alive  or  can 
be  found,  it  must  be  proved  that  the  attestation  of  one  attest- 
ing witness  at  least  is  in  his  handwriting,  and  that  the  signa- 
ture of  the  person  executing  the  document  is  in  the  handwriting 
of  that  person.^ 


*  See  Note  XXVIIL 
'  [As  to  the  question,  who  is  an  attesting  witness,  see  Gr.  Ev.  i.  §  569  a  ; 
Sherwood  V.  Pratt,  63  Barb.  137  ;  Huston  v.   Ticknor,  99  Pa.  St.  231.] 

2  [See  Art.  69,  note.] 

3  [Gr.  Ev.  i.  §  569  ;  Wh.  Ev.  i.  §^  723-725  ;  Henry  v.  Bishop.  2  Wend. 
575  ;  Barry  v.  Ryan,  4  Gray,  523.  Only  one  witness  need  testify,  though 
there  be  two  or  more.  White  v.  Wood,  8  Cush.  413  ;  Atrter.  Underwriters' 
Ass'n  V.  George,  97  Pa.  St.  238  ;  Melcher  v.  Flanders,  40  N.  H.  139.  But 
the  absence  of  all  must  be  accounted  for,  before  evidence  of  handwriting 
will  be  admitted,  yackson  v.  Gager,  5  Cow.  383  ;  Tarns  v.  Hitner,  9  Pa. 
St.  441  ;   Turner  v.   Green,  2  Cr.  C.  C.  202.] 

*  [S.  P.  as  to  deeds  ;  Mass.  Pub.  St.,  c.  120,  ^^S  8,  10;  Maine  Rev.  St., 
c.  Ti<  §  19;  Vt.  Rev.  St.,  §$  1938,  1943.  But  generally  in  this  country  it 
is  sufficient  to  prove  the  signature  either  of  a  witness  or  of  the  party, 
without  proving  both.  Borst  v.  Empire.  5  N.  Y.  33.  Proof  of  the  signa- 
ture of  one  witness  is  sufficient  proof  of  execution  {Stebbins  v.  Duncan, 
108  U.  S.  32  ;  Gelotl  v.  Goodspeed,  8  Cush.  411  ;  Van  Rensselaer  v.  "Jones, 
2  Barb.  643)  ;  but  proof  of  the  party's  identity  may  be  needed  besides,  in 


Chap.  IX.]       THE  LAW  OF  EVIDENCE.  131 


The  rule  extends  to  cases  in  which — 

the  document  has  been  burnt,'  or  cancelled,'  [or  lost]  ; 


cases  of  doubt  or  suspected  fraud  (Id.;  Browtt  v.  Khnball^  25  Wend.  259)  ; 
and  the  signatures  of  other  witnesses  or  of  the  party  may,  of  course,  al- 
ways be  proved,  in  addition  to  that  of  one  witness.  Jackson  v.  Chamber- 
lain, 8  Wend.  620  ;  Scrvis  v.  Ah-lson,  14  N.  J.  Eq.  94.  In  New  York,  the 
signature  of  a  witness  must  always  be  proved,  if  practicable,  before  that 
of  a  paitycan  be  {Willson  v.  Betts,  4  Den.  201)  ;  but  if  the  witness's 
writmg  cannot  be  proved,  then  the  party's  should  be.  Jackson  v.  IV'al- 
dron^  13  Wend.  178  ;  S.  P.  Lessee  of  Clarke  v.  Courtney,  5  Pet.  319.  But 
in  a  number  of  the  States  the  writing  of  the  party  may  be  proved  without 
proving  that  of  a  witness  {jfoncs  v.  Roberts,  65  Me.  273  ;  Cox  v.  Davis,  17 
Ala.  714  ;  Landers  v.  Bo/ton,  26  Cal.  393  ;  Wellford  v.  Eakin,  i  Cr.  C.  C. 
264)  ;  that  the  handwriting  of  either  or  both  may  be  proved,  see  Clark  v. 
Boyd,  2  Ohio,  55  ;   Gelott  v.  Goodspecd,  8  Cush.  411. 

Besides  death  or  insanity  {Neely  v.  Needy,  17  Pa.  St.  227),  absence  of 
witnesses  from  the  State  will  let  in  proof  of  handwriting  {Richards  v. 
Skiff,  8  O.  St.  586  ;  Ballinger  v.  Davis,  29  la.  512  ;  McMinn  v.  Whelan, 
27  Cal.  300  ;  Lush  v.  Druse,  4  Wend.  313  ;  the  deposition  of  the  absent 
witness  need  not  be  taken  as  to  execution,  Clark  v.  Houghton,  12  Gray, 
38)  ;  or  the  fact  that  no  witness  can  be  found  after  diligent  search,  or 
none  who  is  competent  to  testify.  Gr.  Ev.  i.  §  572 ;  Pelletreau  v.  Jackson, 
II  Wend,  no;    Woodman,  v.  Segar,  25  Me.  90. 

Special  statutes  in  some  States  require  proof  of  certain  documents  by 
more  than  one  witness  ;  as  e.g.,  prooi  oi  xai lis  in  New  York  for  admission 
to  probate.  N.  Y.  Code  Civ.  Pr.  ^^  2618-2620 ;  cf.  Carson's  Appeal, 
59  Pa.  St.  493.  But  in  an  action  at  law  in  this  State,  the  execution  of  a 
will  may  be  proved  by  one  subscribing  witness.  Cornwcll  v.  IVooley,  i 
Abb.  Dec.  441  ;  Caw  v.  Robertson,  5  N.  Y.  125,  134.  But  if  the  witnesses 
are  dead,  absent,  etc.,  it  may  be  necessary  to  prove  the  handwriting  of 
them  all  and  of  the  testator.  Jackson  v.  Vickery,  i  Wend.  406  ;  see  Rider 
V.  Lcgg,  51  Barb.  260.  As  to  the  proof  of  a  will  in  a  suit  in  equity,  see 
Chapman  v.  Rodgers,  12  Hun,  342.] 

'  Gillies  v.  Smither,  2  Star.  R.  528. 

''■  Breton  v.  Cope,  Pea.  R.  43. 

3  [Hewitt  V.  Morris,  5  J.  &  Sp.  18  ;  K'elsey  v.  Haunncr,  18  Ct.  311  ;  Por- 
ter V.  Wilson,  13  Pa.  St.  641  ;  cf.  Dan  v.  Brown,  4  Cow.  4S3  ;  Moore  v. 
Livingston,  28  Barb.  543  ;  Kimball  v.  Morrill,  4  Me.  368  ;  contra,  Simmons 
V.  Havens,  29  Hun,  119  ;  if,  however,  by  reason  of  the  loss,  it  cannot  be 
ascertained  who  were  the  subscribing  witnesses,  other  evidence  is  admis- 
sible.    Jackson  V.   Vail,  7  Wend.  125  ;  Davis  v.  Spooner,  3  Pick.  284.] 


132  A  DIGEST  OF  Part  II. 

the  subscribing  witness  is  blind  ; ' 

the  person  by  whom  the  document  was  executed  is  prepared 
to  testify  to  his  own  execution  of  it  ;  * 

the  person  seeking  to  prove  the  document  is  prepared  to 
prove  an  admission  of  its  execution  by  the  person  who  exe- 
cuted it,  even  if  he  is  a  party  to  the  cause,  ^  unless  such  ad- 
mission be  made  for  the  purpose  of,  or  has  reference  to  the 
cause.'' 

Article  67.* 

cases  in  which  attesting  witness  need  not  be  called. 

In  the  following  cases,  and  in  the  case  mentioned  in  article 
88,  but  in  no  others,  a  person  seeking  to  prove  the  execution 
of  a  document  required  by  law  to  be  attested  is  not  bound  to 
call  for  that  purpose  either  the  party  who  executed  the  deed  or 


*See  Note  XXVIII. 

'  Cronk  V.  Frith,  9  C.  &  P.  197 ;  [see  Cheoiey  v.  Arnold,  18  Barb.  434.] 

"^R.  V.  Harringworth,  4  M.  &  S.  353.  [This  is  true,  though  parties  are 
now  competent  to  testify.  Bri^ham  v.  Palmer,  3  Allen,  450  ;  Jones  v. 
Underwood,  28  Barb.  481  ;  Weigand  v.  Sickel,  4  Abb.  Dec.  592  ;  Hess  v. 
Griggs,  43  Mich.  397;  contra,  Bowlings.  Max,  55  Mo.  446,] 

3  Call  V.  Dunning,  4  Ea.  53.  See,  too,  Wkyman  v.  Garth,  8  Ex.  803  ; 
Randall  v.  Lynch,  2  Camp.  357  ;  \^Fox  v.  Riel,  3  Johns.  477  ;  Smith  v. 
Cawlin,  1  Cr.  C.  C.  99  ;  Kinney  v.  Flynn,  2  R.  I.  319  ;  Zerby  v.  Wilson,  3 
Ohio,  462.  But  a  contrary  rule  became  established  in  New  York  as  to 
negotiable  paper.  See  Jones  v.  Underwood,  28  Barb.  483  ;  S.  P.  Wil- 
liams V.  Floyd,  II  Pa.  St.  499  ;  but  see  Art.  69,  note  2. 

If  the  witnesses  are  dead,  and  the  document  lost  or  cancelled,  so  that 
handwriting  cannot  be  proved,  evidence  of  admissions  is  receivable 
(Jackson  V.  Vail,  7  Wend.  125  ;  Kingwood  \.  Bethlehem,  13  N.  J.  L.  221)  ; 
so  if  the  witnesses'  testimony  is  insufficient.  Frost  v.  Deering,  21  Me. 
156.] 

*  [Gr.  Ev.  i.  §§  569,  572  ;  Blake  v.  Sawin,  10  Allen,  340  ;  such  admis- 
sions may  be  made  in  the  pleadings  (Robert  v.  Good,  36  N.  Y.  408  ; 
Thorpe  v.  Keokuk  Coal  Co. ,  48  N.  Y.  253)  ;  so  both  parties  may  waive  proof 
by  witness.     Forsjthe  v.  Hardin,  62  111.  206.] 


Chap.  IX.]       THE  LAW  OF  EVIDENCE.  133 

any  attesting  witness,  or  to  prove  the  handwriting  of  any  such 
party  or  attesting  witness — 

(i)  When  he  is  entitled  to  give  secondary  evidence  of  the 
contents  of  the  document  under  article  71  («)  ;  ' 

(2)  When  his  opponent  produces  it  when  called  upon,  and 
claims  an  interest  under  it  in  reference  to  the  subject-matter  of 
the  suit  ;  * 

(3)  When  the  person  against  whom  the  document  is  sought 
to  be  proved  is  a  public  officer  bound  by  law  to  procure  its 
due  execution,  and  who  has  dealt  with  it  as  a  document  duly 
executed.'  ^ 

'  Cooke  V.  Tanswell,  8  Tau.  450  ;  Poole  v.  Warren,  8  A.  &  E.  588  ; 
[Rawley  v.  Doe,  6  Blackf.  (Ind. )  143  ;  but  Bright  \.  Young,  15  Ala.  112, 
holds  that  the  e.\ecution  of  the  document  must  be  proved  in  this  case, 
either  by  direct  evidence,  or  if  this  be  lacking,  by  evidence  of  circum- 
stances tending  to  prove  the  fact.  Sec  Jacksoti  v.  IVoolsey,  11  Johns. 
446.] 

2  Pearce  v.  Hooper,  3  Tau.  60 ;  Rearden  v.  Mintcr,  S  M,  &  G.  204  ;  [Gr. 
Ev.  i.  $  571  ;  yackson  v.  Kingsley,  17  Johns.  158  ;  McGregor  v.  Wait,  10 
Gray,  72  ;  see  Ballictt  v.  Fink,  28  Pa.  St.  266  ;  Adams  v.  O'  Connor,  100 
Mass.  515.]  As  to  the  sort  of  interest  necessary  to  bring  a  case  within 
this  exception,  see  Collins  v.  Bayntun,  i  Q.  B.  118. 

^  Pliimer  v.  Briscoe,  11  Q.  B.  46;  [Scott  v.  Waithman,  3  Stark.  168; 
Gr.  Ev.  i.  $  571.]  Bailey  v.  Bidwell,  13  M.  &  W.  ']2>i  would  perhaps  jus- 
tify a  slight  enlargement  of  the  exception,  but  the  circumstances  of  the 
case  were  very  peculiar.  Mr.  Taylor  (ss.  1650-1)  considers  it  doubtful 
whether  the  rule  extends  to  instruments  executed  by  corporations,  or  to 
deeds  enrolled  under  the  provisions  of  any  Act  of  Parliament,  but  his 
authorities  hardly  seem  to  support  his  view  ;  at  all  events,  as  to  deeds  by 
corporations.  [This  exception  does  not  appear  to  have  become  estab- 
lished in  American  law  ;  but  see  Gr.  Ev.  i.  §  573.] 

■i  [The  following  are  additional  exceptions  : 

(rt)  It  is  a  rule  in  some  States  that  proof  by  a  subscribing  witness  is  not 
required  when  the  instrument  is  not  directly  in  issue,  but  only  comes  inci- 
dentally or  collaterally  in  question.  Gr.  Ev.  i.  §  573,  b  ;  Wh.  Ev.  i.  %  724  ; 
Kitchen  v.  Smith,  loi  Pa.  St.  452  ;  Aycrs  v.  Hewett,  19  Me.  281  ;  Curtis 
v.  Belknap,  21  Vt.  433  ;  see  Comm.  v.  Castles,  9  Gray,  121  ;  contra,  yones 
V.  Underwood,  28  Barb.  481  ;  yackson  v.  Christman,  4  Wend.  277  ;  but 
see  Smith  v.  N.   V.  C.  R.  Co. ,  4  Abb.  Dec.  262. 

(1^)  !n  many  States  recorded   deeds  and  other  instruments   may  be 


134  A  DIGEST  OF  [Part  II. 

Article  68. 

proof  when  attesting  witness  denies  the  execution. 

If  the  attestiag  witness  denies  or  does  not  recollect  the  exe- 
cution of  the  document,  its  execution  may  be  proved  by  other 
evidence.' 

Article  69. 

proof  of  document  not  required  by  law  to  be 
attested. 

An  attested  document  not  required  by  law  to  be  attested 
may  in  all  cases  whatever,  civil  or  criminal,  be  proved  as  if  it 
was  unattested.* 


proved  by  duly  authenticated  copies,  without  calling  any  subscribing 
witness  ;  or  the  deed,  etc.,  as  acknowledged  or  proved  and  certified,  so  as 
to  be  recorded,  may  be  given  in  evidence.  But  the  rules  vary  in  differ- 
ent States.  See  Gragg  v.  Learned,  109  Mass.  167  ;  N.  Y.  Code  Civ.  Pr. 
§$  935-937  ;  Maine  Rev.  St.,  c.  82.  §  no  ;  Wh.  Ev.  i.  %  740.] 

1  •'  Where  an  attesting  witness  has  denied  all  knowledge  of  the  matter, 
the  case  stands  as  if  there  were  no  attesting  witness  :  "  Talbot  v.  Hodson, 

7  Tau.  251,  254.  [Hamsher  v.  K/i?ie,  57  Pa.  St.  397;  Matter  of  Cottrcll, 
95  N.  Y.  329  ;  Patterson  v.   Tucker,  9  N.  J.  L.  322  ;    Thomas  v.  Le  Baron, 

8  Met.  355  ;  cf.  Tompson  v.  Fisher,  123  Mass.  559  ;  so  generally  if  the 
witness's  testimony  is  inadequate  to  prove  execution.  Harrington  v. 
Gable,  81  Pa.  St.  406;  Frost  \.  Deering,  21  Me.  156.] 

'i  17  &  18  Vict.  c.  125,  s.  26  ;  28  &  29  Vict.  c.  18,  ss.  i,  7.  [Similar 
statutes  are  in  force  in  some  States  of  this  country  ;  Laws  of  1883,  N.  Y. 
c.  195  ;  Pub.  St.  R.  I.,  c.  214,  s.  41;  cf.  111.  Rev.  St.,  p.  543,  s.  51  {ed. 
1883).  But  by  the  common-law  rule,  which  still  generally  prevails,  if  a 
document  is  actually  attested,  though  the  law  does  not  require  its  attest- 
ation, its  execution  must  be  proved  by  the  attesting  witness,  or  as  other- 
wise prescribed  in  Art.  66. 

As  to  the  proof  of  unattested  documents,  see  Nichols  v.  Allen,  112 
Mass.  23  ;  St.  "John  v.  Anier.  Ins.  Co.,  2  Duer,  419  ;  Pullen  v.  Hutchinson, 
25  Me.  249.] 


Chap.  IX.J        THE  LAW  OF  EVIDENCE.  135 


Article  70. 

secondary  evidence. 

Secondary  evidence  means — 

(i)  Examined  copies,  exemplifications,  office  copies,  and 
certified  copies  :  • 

(2)  Other  copies  made  from  the  original  and  proved  to  be 
correct  :  ' 

(3)  Counterparts  of  documents  as  against  the  parties  who 
did  not  execute  them  :  ^ 

(4)  Oral  accounts  of  the  contents  of  a  document  given  by 
some  person  who  has  himself  seen  it/ 

Article  71. 

cases  in  which  secondary  evidence  relating  to 
documents  may  be  given. 

Secondary  evidence  may  be  given  of  the  contents  of  a  docu- 
ment in  the  following  cases — 

(a)  When  the  original  is  shown  or  appears  to  be  in  the  pos- 
session or  power  of  the  adverse  party, 

and  when,  after  the  notice  mentioned  in  article  72,  he  does 
not  produce  it  ;  * 

'  See  chapter  x. 

2  [See  p.  129,  n.  2  ;  a  copy  of  a  copy  is  sometimes  admissible.  Came- 
ron V.  Peck,  37  Ct.  555.] 

2  Muiin  V.  Godbold,  3  Bing.  292  ;  [Lor tug  v.  IVhitfemore,  13  Gray,  228  ; 
see  Art.  64,  n.  3.] 

*  [The  witness  must  be  able  to  prove  substantially  all  the  contents. 
Edwards  v.  Noyes,6e,  N.  Y.  125  ;  Clark  v.  Houghton,  12  Gray,  38  ;  Stebbins 
V.  Duncan,  108  U.  S.  32.] 

''  R.  V.  Watson^  2  T.  R.  201.  Entick  v.  Carrington,  19  S.  T.  1073,  is 
cited  by  Mr.  Phillips  as  an  authority  for  this  proposition.  I  do  not  think 
it  supports  it,  but  it  shows  the  necessity  for  the  rule,  as  at  common  law 
no  power  existed  to  compel  the  production  of  documents.  [Chambcrlin 
V.  Huguenot   Co.,  118  Mass,  532;    Hanson  v,   Eustace's  Lessee,  2  How, 


136  A  DIGEST  OF  [Part  II. 

{b)  When  the  original  is  shown  or  appears  to  be  in  the  pos- 
session or  power  of  a  stranger  not  legally  bound  to  produce  it, 
and  who  refuses  to  produce  it  after  being  served  with  a  sub- 
pcena  duces  tecum,  or  after  having  been  sworn  as  a  witness 
and  asked  for  the  document  and  having  admitted  that  it  is  in 
court ; '   . 

(r)  When  the  original  has  been  destroyed  or  lost,  and  proper 
search  has  been  made  for  it  ;  ' 

{d)  When  the  original  is  of  such  a  nature  as  not  to  be  easily 


(U.  S.)  653  ;  Naugatiick  Co.  v.  Babcock,  22  Hun,  481  ;  Garland  v .  Dicmc, 
37  Pa.  St.  228.  The  party  refusing  to  produce  incurs  the  penalty  of 
having  all  inferences  from  the  secondary  evidence  taken  most  strongly 
against  himself.      Cahcn  v.  Continental  his.  Co.,  69  N.  Y.  300.] 

'  Mills  v.  Oddy,  6  C.  &  P.  732  ;  Marston  v.  Downes,  i  A.  &  E.  31.  [As 
where  an  attorney  refuses  to  produce  a  document  of  his  client  (Brandt 
v.  Klein,  17  Johns.  335  ;  Hubbell  v.  Jiidd,  etc.  Oil  Co.,  19  Alb.  L.  J.  97  ; 
see  Bird  v.  Bird,  40  Me.  392,  and  Arts.  115,  118,  119,  i>ost)  ;  or  a  witness 
refuses,  because  the  document  will  criminate  him  {State  v.  Giirnee,  14 
Kan.  Ill)  ;  or  the  document  is  a  public  one  on  file  in  a  public  office  and 
so  not  required  to  be  produced.  Corbett  v.  Gibson.,  16  Blatch.  334  ;  see 
p.  140,  n.  I,  post.'X 

*  I  Ph.  Ev.  s.  452 ;  2  Ph.  Ev.  281 ;  T.  E.  (from  Greenleaf)  s.  399.  The 
loss  may  be  proved  by  an  admission  of  the  party  or  his  attorney  ;  R.  v. 
Haworth,  4  C.  &  P.  254.  \^lVhitcher  v.  McLaughlin,  115  Mass.  167; 
Llandeville  v.  Reynolds,  68  N.  Y.  528  ;  Stebbins  v.  Duncan,  108  U.  S.  32  ; 
Dichl  V.  Eniig,  65  Pa.  St.  320.  Diligent  search  must  ordinarily  be 
shown,  exhausting  all  reasonable  means  of  discovery.  Simpson  v.  Dall, 
3  Wall.  460  ;  yohnso7i  v.  Ar?iwine,  42  N.  J.  L.  451  ;  Kearney  v.  Mayor  of 
N'.  Y. ,  92  N.  Y.  617  ;  Hatch  v.  Carpenter,  9  Gray,  271.  But  the  less  the 
importance  of  the  instrument,  the  less  the  diligence  required.  Amer. 
Ins,  Co.  V.  Rosenagle,  jj  Pa.  St.  507.  Proof  of  the  existence  and  gen- 
uineness of  the  lost  instrument  is  required,  in  order  that  secondary  evi- 
dence maybe  admissible.  A'icAols  v.  Iron  Co.,  56  N.  Y.  618;  Krise  w. 
Neason,  66  Pa.  St.  253. 

A  party  who  has  voluntarily  destroyed  a  document  cannot  give  second- 
ary evidence  of  its  contents,  unless  he  shows  his  act  to  have  been  with 
innocent  intent.  Steele  v.  Lord,  70  N.  Y.  280  ;  Bagley  v.  McMickle,  9 
Cal.  430  ;  yones  v.  Knaus,  31  N.  J.  Eq.  609  ;  Joannes  v,  Bennett,  5  Allen, 
169.] 


Chap.  IX.]        THE  LAW  OF  EVIDENCE.  137 

movable,'  or  is  in  a  country  from  which  it  is  not  permitted  to 
be  removed  ;  ^ 

(c)  When  the  original  is  a  public  document  ;  ' 

(/")  [When  the  party  has  been  deprived  of  the  original  by 
fraud,  so  that  it  cannot  be  procured.]  * 

(.§")  When  the  original  is  a  document  for  the  proof  of  which 
special  provision  is  made  by  any  Act  of  Parliament,  or  any 
law  in  force  for  the  time  being  ;  ^  or 

{h)  When  the  originals  consist  of  numerous  documents 
which  cannot  conveniently  be  examined  in  court,  and  the 
fact  to  be  proved  is  the  general  result  of  the  whole  collection  ; 


'  Mortimer  v.  McCallan,  6  M.  &  W.  6j,  68  (this  was  the  case  of  a  libel 
written  on  a  wall)  ;  Bruce  v.  A^icolopulo,  ii  Ex.  133  (the  case  of  a  placard 
posted  on  a  wall).  [Gr.  Ev.  i.  $  94  ;  North  Brookfisld  v.  Warren,  16  Gray, 
171  (inscription  on  a  tombstone)  ;  Stearns  v.  Doe,  12  Gray,  482  (name 
of  a  vessel) ;  cf.  Cozzens  v.  Higgins,  I  Abb.  Dec.  451  (photograph  of  a 
place  ;  see  Art.  64,  ante. )] 

^Ativan  v.  Furnival,  I  C.  M.  &  R.  277,  291-2.  \Mauri  v.  Heffernan, 
13  Johns.  58  ;  so  if  the  original  is  in  the  possession  of  a  person  in  another 
State  or  country,  so  that  its  production  cannot  be  secured.  Elwell  v. 
Mersick,  50  Ct.  272 ;  Tucker  v.  IV'oolsey,  6  Lans.  482  ;  Beattie  v.  Hil- 
liard,  55  N.  H.  428  ;  Fosdick  v.  Van  Horn,  40  O.  St.  459  ;  Burton  v. 
Driggs,  20  Wall.  125,  134  ;  Ware  y.  Morgan,  67  Ala.  461 ;  Rhodes  v.  Sei- 
bert,  2  Pa.  St.  18.  These  cases  do  not  declare  it  necessary  to  take  his 
deposition,  but  in  some  cases  his  deposition  has  been  taken,  and  sec- 
ondary evidence  received  because  he  would  not  give  up  the  original. 
Burney  v.  Russell,  109  Mass.  55  ;  Bailey  v.  jfohnson,  9  Cow.  115  ;  (in 
these  cases  he  gave  a  copy  which  was  used)  ;  Forrest  v.  Forrest,  6  Duer, 
102,  137.  Mere  absence  of  the  document  from  the  State  is  not  enough, 
some  cases  hold,  if  proper  effort  will  secure  its  production.  Shaw  v. 
Mason,  10  Kan.  184  ;  Forrest  v.  Forrest,  supra.] 

3  See  chapter  x  ;   [including  public  records  ;  see  Gr.  Ev.  i.  $  91.] 

<  {^Grimes  v.  /Cimiall,  3  Allen,  518  ;  Nealley  v.  Greenough,  5  Foster, 
325  ;  Mitchell  v.  Jacobs,  17  111.  235  ;  see  Marlow  v.  Marlow,  77  111. 
633- 

This  paragraph  is  substituted  for  one  which  is  peculiar  to  English  law. 
It  will  be  found  in  the  Appendix,  note  XLix.] 

*  See  chapter  x  ;  [many  such  statutes  are  in  force  in  this  country.] 


138  A  DIGEST  OF  [Part   II. 

provided  that  that  result  is  capable  of  being  ascertained  by 
calculation.'  ' 

Subject  to  the  provisions  hereinafter  contained,  any  second- 
ary evidence  of  a  document  is  admissible.^ 


'  Roberts  v.  Doxcn,  Peake,  116  ;  Meyer  v.  Sefton,  2  Star.  276.  The 
books,  etc. ,  should  in  such  a  case  be  ready  to  be  produced  if  required. 
Johnson  v.  Kershaw^  i  De  G.  &  S.  264.  [Gr.  Ev.  i.  $  93  ;  Wh.  Ev.  i.  $  80  ; 
Burton  v.  Driggs,  20  Wall.  125  ;  Von  Sachs  v.  Kretz,  72  N.  Y.  548  ;  Jor- 
dan V.  Osgood,  109  Mass.  457  ;  B.  e-^  \V.  R.  Co.  v.  Dana,  i  Gray,  83  ; 
Fosdick  V.   Van  Horn,  40  O.  St.  459.] 

^  [Besides  the  cases  here  stated,  another  is  sometimes  asserted,  viz., 
that  when  proof  is  required  of  the  contents  of  a  document  which  merely 
relates  to  some  collateral  fact,  parol  evidence  of  the  contents  is  sufficient. 
McFadden  v.  Kingsbury,  11  Wend.  667.  But  this  doctrine  is  doubtful. 
Frank  v.  Manny,  2  Daly,  92  ;  Jones  v.  Under-wood,  28  Barb.  481. 

But  a  document  may  be  so  far  collateral  to  the  question  in  issue,  though 
relating  to  the  same  subject  matter,  that  its  production  is  not  required, 
nor  proof  of  its  contents  necessary.  In  such  a  case  parol  evidence  is  re- 
ceivable of  the  transaction  which  forms  the  subject  of  action  ;  as  e.g., 
where  a  contract  is  made  by  parol,  but  a  written  memorandum  of  its 
terms  is  made  at  the  same  time.  In  proper  cases  the  writing  is  compe- 
tent evidence  to  corroborate  the  oral  testimony.  Lathrop  v.  Bramhall, 
64  N.  Y.  365  ;  Thomas  v.  Nelson,  69  N.  Y.  118.  So  the  payment  of  a 
debt  may  be  proved  by  parol,  without  producing  the  written  receipt 
{Kingsbury  v.  Moses,  45  N.  H.  222)  ;  so  oftentimes  of  written  proposals, 
notices,  demands,  etc.  Gr.  Ev.  i.  %%  89,  90;  Wh.  Ev.  i.  $^S  64,  77;  see 
Co7nm.  V.  Morrell,  99  Mass.  542.  So  collateral  facts  about  a  document 
may  be  proved  by  parol.     See  p.  164,  n.  3,  post. 

As  to  proof  of  a  person's  holding  a  public  office,  see  Art.  90,  last  para- 
graph.] 

3  If  a  counterpart  is  known  to  exist,  it  is  the  safest  course  to  produce 
or  account  for  it.  Mun?t  v.  Godbold,  3  Bing.  297  ;  R.  v.  Castleton,  7  T.  R. 
236. 

[It  is  the  English  doctrine  that  there  are  no  degrees  in  secondary  evi- 
dence, and  a  party  may  introduce  any  form  thereof  (as  e.g.,  parol  testi- 
mony instead  of  a  copy),  if  the  original  cannot  be  had.  Some  American 
States  adopt  the  same  doctrine.  Goodrich  v.  Weston,  102  Mass.  362  ; 
Eslow  V.  Mitchell^  26  Mich.  500 ;  Carpenter  v.  Dame,  TO  Ind.  125.  But 
generally  in  this  country  a  party  must  produce  the  best  form  of  second- 
ary evidence  that  is  or  appears  to  be  procurable  by  him.     Comett  v 


Chap.  IX.]       THE  LAW  OF  EVIDENCE.  139 

In  case  (//)  evidence  may  be  given  as  to  the  general  result 
of  the  documents  by  any  person  who  has  examined  them,  and 
who  is  skilled  in  the  examination  of  such  documents. 

Questions  as  to  the  existence  of  facts  rendering  secondary 
evidence  of  the  contents  of  documents  admissible  are  to  be 
decided  by  the  judge,  unless  in  deciding  such  a  question  the 
judge  would  in  effect  decide  the  matter  in  issue.' 

Article  72.* 
rules  as  to  notice  to  produce. 

Secondary  evidence  of  the  contents  of  the  documents  re- 
ferred to  in  article  71  {a)  may  not  be  given,  unless  the  party 
proposing  to  give  such  secondary  evidence  has, 

if  the  original  is  in  the  possession  or  under  the  control  of 
the  adverse  party,  given  him  such  notice  to  produce  it  as  the 
Court  regards  as  reasonably  sufficient  to  enable  it  to  be  pro- 
cured ;  '  or  has, 


*  See  Note  XXIX. 
Williams,  20  Wall.  226;  Reddington  v.  Gilntaii,  I  Bos.  235;  Niskayuna 
V.  Albany,  2  Cow.  537  ;  Stevenson  v.  Hoy,  43  Pa.  St.  191  ;  Land  Co.  v.  Bon- 
ner, 75  III.  315  ;  Harvey  v.  Thorpe,  28  Ala.  250  ;  Higgitis  v.  Reed,  8  la.  298  ; 
Nason  v.  Jordan,  62  Me.  480  ;  but  see  as  to  New  York,  Van  Dyne  v. 
Thayre,  19  Wend.  166. 

As  to  counterparts,  see  Poignard  v.  Smith,  8  Pick.  272;  Ri^-gs  v.  Tay- 
loe,  9  Wheat.  483  ;  Art.  64,  ante.  Of  duplicate  originals,  all  must  be 
shown  to  be  lost,  destroyed,  etc.,  before  secondary  evidence  will  be  re- 
ceived. Dyer  v.  Fredericks,  63  Me.  173,  592;  McMakin  v.  Westoti,  64 
Ind.  270.] 
'  [Mason  v.  LtMey,  90  N.  Y.  683  ;  Elwell  v.  Mersick,  50  Ct.  272.] 
'^  Dwyer  v.  Collitis,  7  Ex.  648  ;  [Foster  v.  Ne^obrotigh,  58  N.  Y.  481  ; 
Draper  v.  Hatfield,  124  Mass.  53  ;  People  v.  Walker,  38  Mich.  159  ;  Eil- 
bert  V.  Finkheiner,  68  Pa.  St.  243.  Notice  is  not  required  unless  the 
original  is  in  the  party's  possession  or  control.  Roberts  v.  Spencer,  123 
Mass.  397  ;  Baker  v.  Pike,  33  Me.  213  ;  Shcppard  v.  Giddings,  22  Ct  282. 
The  notice  may  be  given  to  the  party's  attorney.  Brown  v.  Littlefield,  7 
Wend.  454 ;  Den  v.  McAllister,  7  N.  J.  L.  46.    The  notice  must  be  given  <\ 


I40  A  DIGEST  OF  [Part  II. 

if  the  original  is  in  the  possession  of  a  stranger  to  the  action, 
served  him  with  a  subpoena  duces  tcctati  requiring  its  produc- 
tion ;  ' 

if  a  stranger  so  served  does  not  produce  the  document,  and 
has  no  lawful  justification  for  refusing  or  omitting  to  do  so, 
his  omission  does  not  entitle  the  party  who  served  him  with 
the  snbpccna  to  give  secondary  evidence  of  the  contents  of  the 
document.'' 

sufficient  time  beforehand  {Bourne  v.  Duffington,  125  Mass.  481  ;  U.  S. 
V.  Duff,  6  F.  R.  45  ;  Dc  Witt  v.  Prescott,  51  Mich.  298  ;  McPkcrsott  v. 
Rathboiie,  7  Wend.  216;  Utica  Ins.  Co.  v.  Cadwell,  3  Wend.  296),  and 
must  definitely  describe  the  document  required.  Walden  v.  Davison^  11 
Wend.  65  ;  see  Gr.  Ev.  i.  §  563  ;  Art.  71,  a?ite ;  Arts.  138,  139, /^j/. 

In  the  Federal  courts,  the  production  of  books  and  writings  by  a  party 
may  also  be  required  under  a  special  statute  in  actions  at  law.  U.  S. 
Rev.  St.  ^  724  ;  Lowenstein  v.  Carey,  12  F.  R.  811,  and  note.  Stat- 
utes in  many  States  also  allow  discovery  and  inspection  of  documents 
before  trial.  N.  Y.  Code  Civ.  Pr.  §§  803-809;  Mass.  Pub.  St.,  c.  167, 
$§49-60.] 

'  Newton  v.  Chaplin,  10  C.  B.  56-69 ;  [Aikin  v.  Martin,  11  Pai.  499  ; 
Lane  v.  Cole,  12  Barb.  680  ;  Baker  v.  Pike,  33  Me.  213  ;  In  re  Skep/iard, 
3  F.  R.  12 ;  so  on  examinations  before  masters  and  commissioners  in 
federal  practice.  Erie  R.  Co.  v.  Heath,  8  Blatch.  413  ;  U.  S.  v.  Tilden, 
10  Ben.  566.  Such  a  subpoena  may  be  served  on  a  party,  now  that  par- 
ties are  competent  witnesses  {Shelp  v.  Morrison,  13  Hun,  no  ;  Mwray  v. 
£lston,  23  N.  J.  Eq.  212  ;  Cummer  v.  Kent  Judge,  38  Mich.  351  ;  but  see 
Campbell  v.  Johnston,  3  Del.  Ch.  94),  or  on  a  corporation,  by  serving  the 
proper  officer.  IVertheim  \.  Continental  R.  Co.,  IS  F.  R.  716  ;  Ex  parte 
Brown,  T2  Mo.  83  (telegrams)  ;  U.  S.  v.  Babcock.^  3  Dill.  566  (telegrams)  ; 
N.  Y.  Code  Civ.  Pr.  §  868  ;  In  re  Sykes,  10  Ben.  162.  The  writ  should 
describe  documents  definitely  {Ex parte  Brown,  supra;    U.  S.  v.  Hunter, 

15  F.  R.  712),  and  is  compulsory,  unless  it  is  set  aside,  or  the  witness 
is  privileged.     Bonesteel  \.  Lynde^  8  How.  Pr.  226,  352  ;   Corbettw.  Gibson, 

16  Blatch.  334  ;  Johnson  v.  Donaldson,  3  V.  R.  22  ;  see  Art.  71  {b),  ante ; 
Arts.  118-120, /(J-f/.  ] 

'^  R.  V.  Llanfaethly,  2  E.  &  B.  940.  [The  recusant  witness  may  be  sued 
for  damages  {Lane  v.  Cole,  12  Barb.  680),  punished  for  contempt  {Bone- 
steel  v.  Lynde.,  8  How.  Pr.  226,  352),  and  is  generally  subject  also  to  a 
statutory  penalty.  When  he  is  a  party,  his  pleading  has  sonietinies  been 
stricken  out.     Shelp  v,  Morrison,  13  Hun,  no.] 


Chap.  IX.]        THE  LAW  OF  EVIDENCE.  141 

Such  notice  is  not  required  in  order  to  render  secondary 
evidence  admissible  in  any  of  the  following  cases — 

(i)  When  the  document  to  be  proved  is  itself  a  notice  ; ' 

(2)  When  the  action  is  founded  upon  the  assumption  that 
the  document  is  in  the  possession  or  power  of  the  adverse 
party  and  requires  its  production  ;  ^ 

(3)  When  it  appears  or  is  proved  that  the  adverse  party  has 
obtained  possession  of  the  original  from  a  person  subpoenaed 
to  produce  it ;  ' 

(4)  When  the  adverse  party  or  his  agent  has  the  original  in 
court.''  ' 


'  [Quinley  v.  Atkins,  9  Gray,  370  ;  Edwards  v.  Bonneau,  I  Sandf.  610 ; 
Gethin  v.  Walker,  59  Cal.  502  ;  Morrow  v.  Comnt.,  48  Pa.  St.  308  ;  Cen- 
tral Bk.  V.  Allen,  16  Me.  41.] 

^  How  V.  Hall,  14  Ea.  247.  In  an  action  on  a  bond,  no  notice  to  pro- 
duce the  bond  is  required.  See  other  illustrations  in  2  Ph.  Ev.  373 ;  T. 
E.  s.  422.  [^Lawson  v.  Bachmaii,  81  N.  Y.  616  ;  Morrill  v.  B.  &>  M.  R.  Co., 
58  N.  H.  68  ;  Dana  v.  Conant,  30  Vt.  246 ;  Railway  Co.  v.  Cronin,  38  O. 
St.  122  ;  as  in  an  action  of  trover  for  the  document.  Hotchkiss  v.  Mosher, 
48  N.  Y.  479.  The  rule  applies  also  in  criminal  cases.  State  v.  May- 
berry,  48  Me.  218.] 

3  Leeds  V.  Cook,  4  Esp.  256 ;  [cf.  Bonesteel  v.  Lynde,  8  How.  Pr.  226, 
352  ;  so  where  a  party  tore  off  a  part  of  a  document  with  intent  to  destroy, 
notice  to  produce  the  portion  he  took  was  held  unnecessary.  Scott  v. 
Pentz,  5  Sandf.  572.] 

■•  Formerly  doubted,  see  2  Ph.  Ev.  278,  but  so  held  in  Dwyer  v.  Collins,  7 
Ex.  639.  [.'\  verbal  notice  in  court  is  in  this  case  sufficient  to  let  in  second- 
ary evidence.  Ckadwick  v.  U.  .S". ,  3  F.  R.  750;  Kerr  v.  McGuirc,  28 
N.  Y.  446  ;  see  Atwell  v.  Miller,  6  Md.  10  ;  Barton  v.  Kane,  17  Wis.  37  ; 
Hammond  v.  Hopping,  13  Wend.  505  ;  some  early  cases  are  to  the  con- 
trary ;  Watkins  v.  Pintard,  i  N.  J.  L.  (Co.ve)  378  ;  Milliken  v.  Barr,  7 
Pa.  St.  23.  Or  the  court  may  compel  the  witness  to  produce  the  docu- 
ment. Boynton  v.  Boynton,  25  How.  Pr.  490,  41  N.  Y.  619  ;  Shelp  v.  Mor- 
rison, 13  Hun,  no,  113  ;  McGregor  v.   Wait,  10  Gray,  72.] 

'  [Additional  rules  are  as  follows  : 

(a)  A  duplicate  original  may  be  given  in  evidence,  without  giving 
notice  to  produce  the  other.  Gr.  Ev.  i.  §  561  ;  Totten  v.  Ducy,  57  Md. 
446  ;  see  Art.  64,  ante. 

\b)  Absence  of  the  party  having  the  document  from  the  State  is  no  ex- 


■i42  A  DIGEST  OF  [Part  II. 


CHAPTER  X. 

PROOF  OF  PUBLIC  DOCUMENTS. 

Article  y^. 

PROOF  OF  PUBLIC  DOCUMENTS. 

When  a  statement  made  in  any  public  document,  register,  or 
record,  judicial  or  otherwise,  or  in  any  pleading  or  deposition 
kept  therewith  is  in  issue,  or  is  relevant  to  the  issue  in  any 
proceeding,  the  fact  that  that  statement  is  contained  in  that 
document,  may  be  proved  in  any  of  the  ways  mentioned  in  this 
chapter.' 

Article  74. 

production  of  document  itself. 

The  contents  of  any  public  document  whatever  may  be 
proved  by  producing  the  document  itself  for  inspection  from 
proper  custody,  and  identifying  it  as  being  what  it  professes  to 
be.' 


cuse  for  not  giving  notice,  if  he  can  be  found.  Carland  v.  Cun7iingham, 
37  Pa.  St.  228.  Aliter,  if  a  stranger  out  of  the  State  have  the  document. 
Stirling;  v.  Buckingham,  46  Ct.  461  ;  see  Burton  v.  Driggs,  20  Wall.  125, 
134  ;  Art.  71  {d),  ante.'\ 

'  See  articles  34  and  90. 

«  [Gr.  Ev.  i.  §§  479,  482-484  ;  Wh.  Ev.  i.  §$  635-660 ;  Arts.  33  and  34, 
ante,  and  cases  cited  ;  Miller  v.  Hule,  26  Pa.  St.  432  ;  Phelps  v.  Hunt,  43 
Ct.  194.  A  printed  report  of  a  decision  is  not  competent  original  evidence 
of  a  judgment.     Donellan  v.  Hardy,  57  Ind.  393.] 


Chap.  X.]        THE  LAW  OF  EVIDENCE.  143 

Article  75.* 
examined  copies. 

The  contents  of  any  public  document  whatever  may  in  all 
cases  be  proved  by  an  examined  copy.' 

An  examined  copy  is  a  copy  proved  by  oral  evidence  to  have 
been  examined  with  the  original  and  to  correspond  therewith." 
The  examination  may  be  made  either  by  one  person  reading 
both  the  original  and  the  copy,  or  by  two  persons,  one  reading 
the  original  and  the  other  the  copy,  and  it  is  not  necessary 
(except  in  peerage  cases '),  that  each  should  alternately  read 
both." 

Article  76.t 

[GENERAL   RECORDS   OF   THE   NATION  OR   STATE.] 

[Copies  of  any  documents,  records,  books,  or  papers  in  any 
of  the  executive  departments  of  the  United  States  Govern- 
ment, authenticated  under  the  seals  of  such  departments,  re- 
spectively, are  admitted  in  evidence  equally  with  the  origi- 
nals ;  and  the  same  is  true  of  copies  of  documents  in  various 
public  offices,  certified  by  the  proper  public  officer  and  authen- 
ticated under  his  seal  of  office.* 

A  similar  rule  as  to  the  proof  in  State  courts  of  public  docu- 


*  See  Note  XXX..  also  Doe  v.  Ross,  7  M.  &  W.  106. 
t  [For  original  article,  see  Note  L.] 

1  [Gr.  Ev.  i.  $$  48s.  508.] 

2  [Gr.  Ev.  i.  %  508  ;  Hillw.  Packard,  5  Wend.  387  ;  Amer.  Life  Ins.  Co.  v. 
Roscnagle,  77  Pa.  St.  507  ;  see  N.  Y.  Code  Civ.  Pro.  $  962.  It  is  also 
called  a  "  sworn  copy."  Gr.  Ev.  i.  $j  485,  501  ;  Hubbell  v.  Meigs,  50 
N.  Y.  480] 

^  Slane  Peerage  Case,  5  C.  &  F.  42. 

<  2  Ph.  Ev.  200,  231  ;  T.  E.  ss.  1379,  1389  ;  R.  N.  P.  113  ;  \Kellogg  v. 
Kellogg,  6  Barb.  116;  Krisc  v.  Neason,  66  Pa.  St.  253.] 

'  [U.  S.  Rev.  St.  $$  882-898  ;  decisions  collected  in  Bump's  Federal 
Procedure,  pp.  552-562.] 


144  A  DIGEST  OF  [Part  II. 

ments  in  State  offices  is  commonly  established  by  statutes  of 
the  States,  respectively.] ' 

Article  tj* 
exemplifications. 

An  exemplification  is  a  copy  of  a  record  set  out  either  under 
the  Great  Seal  or  under  the  Seal  of  a  Court. ^ 

A  copy  made  by  an  officer  of  the  Court,  bound  by  law  to 
make  it,  is  equivalent  to  an  exemplification,  though  it  is  some- 
times called  an  office  copy.^ 

An  exemplification  is  equivalent  to  the  original  document 
exemplified.^ 

Article  78.* 

copies  equivalent  to  exemplifications. 

A  copy  made  by  an  officer  of  the  Court,  who  is  authorized 
to  make  it  by  a  rule  of  Court,  but    not    required  by  law  to 


*See  NoteXXXL 
'  [See  N.  Y.  Code  Civ.   Pro.   §§  933,  957,  958  ;  Mass.  Pub.  St.,  c.  169, 
^  70.     So  statutes  may  provide  that  documents  in  U.  S.  offices  may  be 
so  proved  in  State  courts.     N.  Y.  Code  Civ.  Pro.  §1$  943,  944.] 

2  [Gr.  Ev.  i.  $$  488,  501  ;  Wh.  Ev.  i.  §  95.  The  term  is  applied  both  to 
domestic  and  to  foreign  records,  laws,  and  documents.  Lincoln  v.  Bat- 
telle,  6  Wend.  475  ;  Lazier  v.  Westcott,  26  N.  Y.  146  ;  Watson  v.  Walker, 
3  Fost.  471  ;  Spauldingv.   Vincent,  24  Vt.  501.] 

3  [This  rule  applies  to  all  courts  within  the  same  jurisdiction.  Gr.  Ev. 
i-  $507.  Copies  of  public  records,  whether  judicial  or  otherwise,  made 
by  a  public  officer  authorized  bylaw  to  make  them,  are  also  often  termed 
"  office  copies,"  as  e.g.,  copies  of  recorded  deeds.  Craggy.  Learned,  109 
Mass.  167;  Elwell  v.  Cuningham,  74  Me.  127.  They  are  ialso  called 
"  certified  copies. "  Sanuiels  v.  Borrowscale,  104  Mass.  207.  They  are 
declared  admissible  in  many  cases  in  courts  of  the  same  jurisdiction  with- 
out further  authentication.  The  officer  may  be  required  to  attach  his  seal 
of  office,  if  he  has  one.] 

■•  [This  is  spoken  of  domestic  records,  etc.;  foreign  records  may  need 
additional  authentication.     Gr.  Ev.  i.  ij  501  ;  Art.  84,/t'j-/..l 


Chap.  X.]         THE  LAlV  OF  EVIDENCE.  14$ 

make  it,  is  regarded  as  equivalent  to  an  exemplification  in 
the  same  Cause  and  Court,  but  in  other  Causes  or  Courts 
it  is  not  admissible  unless  it  can  be  proved  as  arv  examined 
copy.' 

Article  79, 
certified  copies. 

It  is  provided  by  many  statutes  that  various  certificates, 
official  and  public  documents,  documents  and  proceedings  of 
corporations,  and  of  joint  stock  and  other  companies,  and 
certified  copies  of  documents,  bye-laws,  entries  in  registers 
and  other  books,  shall  be  receivable  in  evidence  of  certain 
particulars  in  Courts  of  Justice,  provided  they  are  respectively 
authenticated  in  the  manner  prescribed  by  such  statutes.* 

Whenever,  by  virtue  of  any  such  provision,  any  such  cer- 
tificate or  certified  copy  as  aforesaid  is  receivable  in  proof  of 
any  particular  in  any  Court  of  Justice,  it  is  admissible  as  evi- 
dence if  it  purports  to  be  authenticated  in  the  manner  pre- 


'  [Gr.  Ev.  i.  §  507  ;  Wh.  Ev.  i.  §$  104,  105  ;  Kellogg  v.  Kellogg,  6  Barb. 
ii6,  130.  These  are  called  "office  copies."  (Id.)  But  certified  copies 
authorized  by  statute  (or  "office  copies"  in  the  broader  sense  of  the 
term  ;  see  preceding  article)  are  now  commonly  used  in  their  place,  be- 
ing admissible  in  all  domestic  courts.] 

*  8  &  9  Vict.  c.  113,  preamble.  Many  such  statutes  are  specified  in  T. 
E.  s.  1440  and  following  sections.  See,  too,  R.  N.  P.  114-5.  [See,  e.g., 
U.  S.  Rev.  St.  %^  882-900;  N.  Y.  Code  Civ.  Pro.  $$921-924,928-941, 
943-947,  957-962  ;  A'ortki/mberland  Co.  v.  Zh)imerman,  75  Pa.  St.  26 ; 
Post  V.  Supervisors,  105  U.  S.  667;  Gethin  v.  Walker,  59  Cal.  502;  or 
such  copies  may  be  used  by  virtue  of  immemorial  usage.  Chamberlin  v. 
Ball,  15  Gray,  352.  But  it  is  sometimes  provided,  as  in  New  York,  that 
the  common  law  methods  of  proof  may  be  used,  as  well  as  the  special 
statutory  methods.     Code  Civ.  Pro.  §  962. 

Certificates  are  not  admissible  in  evidence  unless  authorized  by  law, 
and  then  only  as  to  matters  which  the  officer  is  required  or  authorized  to 
certify.  Water  Cotnm'rs  v.  Lansing,  45  N.  Y.  19  ;  Parr  v.  Greenbush,  72 
N.  Y.  463  ;  Wayland  v.  Ware,  109  Mass.  248  ;  jfay  v.  East  Livermorc, 
56  Me.  107.] 


146  A  DIGEST  OF  [Part  11. 

scribed  by  law  without  proof  of  any  stamp,  seal,  or  signature 
required  for  its  authentication  or  of  the  official  character  of  the 
person  who  appears  to  have  signed  it.' 

Whenever  any  book  or  other  document  is  of  such  a  public 
nature  as  to  be  admissible  in  evidence  on  its  mere  production 
from  the  proper  custody,  and  no  statute  exists  which  renders 
its  contents  provable  by  means  of  a  copy,  any  copy  thereof  or 
extract  therefrom  is  admissible  in  proof  of  its  contents,'  pro- 
vided it  purport  to  be  signed  and  certified  as  a  true  copy  or 
extract  by  the  officer  to  whose  custody  the  original  is  in- 
trusted.' ^ 


'  Ibid.,  s.  I.  I  believe  the  above  to  be  the  effect  of  the  provision,  but 
the  language  is  greatly  condensed.  Some  words  at  the  end  of  the  sec- 
tion are  regarded  as  unmeaning  by  several  text  writers.  See,  e.g.,  R.  N. 
P.  116  ;  2  Ph.  Ev.  241  ;  T.  E.  s.  7,  note  i.  Mr.  Taylor  says  that  the  con- 
cluding words  of  the  section  were  introduced  into  the  Act  while  passing 
through  the  House  of  Commons.  He  adds,  they  appear  to  have  been 
copied  from  i  &  2  Vict.  c.  94,  s.  13  (see  Art.  76)  "  by  some  honorable 
member  who  did  not  know  distinctly  what  he  was  about."  They  cer- 
tainly add  nothing  to  the  sense.  [S.  P.  Tktirman  v.  Cameron,  24  Wend. 
87  ;  St.  John  v.  Croll,  5  Hill,  573  ;  Keichline  v.  Keichline,  54  Pa.  St.  75  ; 
Harris  v.  Barnett,  4  Blackf  369.  Such  copies  or  certificates  are,  how- 
ever, generally  deemed  only  presumptive  ox  prima  facie  evidence.  Id.; 
see  N.  Y.  Code  Civ.  Pro.  §$  921-924,  928,  936.] 

'■'  The  words  "  provided  it  be  proved  to  be  an  examined  copy  or  ex- 
tract or,"  occur  in  the  Act,  but  are  here  omitted  because  their  effect  is 
given  in  article  75. 

3  14  &  15  Vict.  c.  99,  s.  14.  [Some  American  decisions  have  main- 
tained this  rule  as  a  common  law  principle.  Gr.  Ev.  i.  §  485  ;  U.  S.  v. 
Perche/nan,  7  Pet.  51  ;  Warner  v.  Hardy,  6  Md.  525  ;  but  see  Seldcti  v. 
Canal  Co.,  29  N.  Y.  634,  638.  But  the  use  of  certified  copies  of  public 
documents  is  now  so  generally  authorized  by  statute  or  rules  of  practice 
that  this  question  as  to  the  common  law  doctrine  has  become  of  little 
practical  importance] 

<  [At  this  point  Mr.  Stephen  adds  the  English  statutory  rule  that  "  every 
such  officer  must  furnish  such  certified  copy  or  extract  to  any  person  ap- 
plying at  a  reasonable  time  for  the  same,  upon  payment  of  a  reasonable 
sum  for  the  same,  not  exceeding  four  pence  for  every  folio  of  ninety 
words.     14  &  15  Vict.   c.  99,   s.  14."     So  in   this  country  it  is  a  general 


Chap.  X.J         THE  LAW  OF  EVIDENCE.  147 


Article  80.* 

[documents  and  records  of  the  several  states  ad- 
missible THROUGHOUT  THE   UNITED   STATES.]' 

[The  records  and  judicial  proceedings  of  the  courts  of  any 
State  or  Territory  or  of  any  country  subject  to  the  jurisdiction 
of  the  United  States,  shall  be  proved  or  admitted  in  any  other 
court  within  the  United  States,  by  the  attestation  of  the  clerk, 
and  the  seal  of  the  court  annexed,  if  there  be  a  seal,  together 
with  a  certificate  of  the  judge,  chief  justice,  or  presiding  mag- 
istrate, that  the  said  attestation  is  in  due  form.^     And  the  said 


[*  For  the  original  article,  see  Note  L.  ] 
rule  that  when  the  use  of  certified  copies  is  authorized  by  statute,  the 
proper  officer  must  give  such  a  copy  on  payment  of  his  legal  fees  for  the 
same.     U.  S.  Rev.  St.  §§  213,  460,  461,  828,  892,  4194,  4195  ;  N.  Y.  Code 
Civ.  Pro.  ^  961.] 

'  [The  acts  of  Congress  herein  stated  were  enacted  under  the  author- 
ity of  the  constitutional  provision  declaring  that  "  full  faith  and  credit 
shall  be  given  in  each  State  to  the  public  acts,  records,  and  judicial  pro- 
ceedings of  every  other  State.  And  the  Congress  may,  by  general  laws, 
prescribe  the  manner  in  which  such  acts,  records,  and  proceedings  shall 
be  proved,  and  the  effect  thereof."     U.  S.  Const.,  Art.  iv.  §  i.] 

■-  [As  to  the  construction  of  this  provision,  see  Gr.  Ev.  i.  §§  504-506; 
VVh.  Ev.  i.  §^  96-103.  The  authorities  are  fully  collected  in  Bump's  Fed. 
Pro.,  pp.  566-616.  The  attestation  must  be  made  by  the  clerk  of  the 
court  ;  that  of  a  deputy  clerk  is  not  sufficient  [Morris  v.  Patchhi,  24  N. 
Y.  394)  ;  if  the  court  has  no  seal,  this  fact  should  be  stated  ;  the  certifi- 
cate must  be  added  by  the  chief  or  presiding'  judge  of  the  court,  not  by 
an  associate  judge  ( Van  Siorch  v.  Griffni,  71  Pa.  St.  240  ;  Hatcher  v. 
Rocheleau,  18  N.  Y.  86)  ;  and  must  be  that  the  attestation  is  in  due  form 
{_i.e.,  in  the  form  required  in  the  State  whence  the  record  comes) ;  if  he 
certifies,  not  this  fact  but  some  other,  the  certificate  is  insufficient.  Craig 
v.  Brown,  i  Pet.  C.  C.  352  ;  Pepin  v.  Lachetimeyer,  45  N.  Y.  27,  32  ;  see 
Biirnelly.  lVe/d,76N.  Y.  103;  Ransom  v.  Wheeler,  12  Abb.  Pr.  139.  This 
statute  does  not  apply  to  the  Federal  courts,  but  their  records,  when  cer- 
tified by  the  clerk  of  the  court  under  its  seal,  are  admissible  in  State  courts 
and  Federal  courts  alike.  Turvhtill  v.  Payson,  95  U.  S.  418.  Nor  does 
it  apply  to  courts  of  inferior  jurisdiction,  as  justices'  courts.     The  modu 


A  DIGEST  OF  [Part  II'. 


records  and  judicial  proceedings,  so  authenticated,  shall  have 
such  faith  and  credit  given  to  them  in  every  court  within  the 
United  States  as  they  have  by  law  or  usage  in  the  courts  of  the 
State  from  which  they  are  taken.' 

All  records  and  exemplifications  of  books,  which  may  be 
kept  in  any  public  office  of  any  State  or  Territory,  or  of  any 
country  subject  to  the  jurisdiction  of  the  United  States,  not 
appertaining  to  a  court,  shall  be  proved  or  admitted  in  any 
court  or  office  in  any  other  State  or  Territory,  or  in  any  such 
country,  by  the  attestation  of  the  keeper  of  the  said  records  or 
books,  and  the  seal  of  his  office  annexed,  if  there  be  a  seal, 
together  with  a  certificate  of  the  presiding  justice  of  the  court 
of  the  county,  parish,  or  district,  in  which  said  office  may  be 
kept,  or  of  the  governor,  or  secretary  of  state,  the  chancellor 
or  keeper  of  the  great  seal  of  the  State  or  Territory,  or 
country,  that  the  said  attestation  is  in  due  form,  and  by  the 
proper  officers.  If  the  said  certificate  is  given  by  the  presid- 
ing justice  of  a  court,  it  shall  be  further  authenticated  by  the 
clerk  or  prothonotary  of  the  said  court,  who  shall  certify, 
under  his  hand  and  the  seal  of  his  office,  that  the  said  presid- 
ing justice  is  duly  commissioned  and  qualified  ;  or,  if  given  by 
such  governor,  secretary,  chancellor  or  keeper  of  the  great 
seal,  it  shall  be  under  the  great  seal  of  the  State,  Territory,  or 
country  aforesaid  in  which  it  is  made.  And  the  said  records 
and  exemplifications,  so  authenticated,  shall  have  such  faith 
and  credit  given  to  them  in  every  court  and  office  within  the 
United  States  as  they  have  by  law  or  usage  in  the  courts  or 
offices  of  the  State,  Territory,  or  country  as  aforesaid,  from 
which  they  are  taken.' 

But  these  provisions  do  not  preclude  the  several  States  from 


of  proving  their  dockets  and  judgments  is  that  prescribed  by  the  laws  of 
the  several  States,  or  by  common  law.  See  N.  Y.  Code  Civ.  Pro.  §§ 
948-951 ;  Gr.  Ev.  i.  §  505.] 

'  [U.  S.  Rev.  St.  $  905  ;  as  to  the  effect  of  such  records,  see  ante,  Art. 
47,  note.] 

2f.U,  S.  Rev.  St.  ^  906  ;  Bump's  Fed.  Pro.,  p.  618.] 


Chap.  X.]         THE  LA\V  OF  EVIDENCE.  149 

establishing  other  modes  of  proving  in  their  own   courts  the 
records  of  other  States.]  ' 

Article  81.* 
[officially  printed  copies.] 

[The  Revised  Statutes  of  the  United  States,  printed  under 
the  direction  of  the  Secretary  of  State  at  the  government  print- 
ing office  and  embracing  the  statutes  of  the  United  States 
general  and  permanent  in  their  nature,  in  force  on  December 
I,  1873,  as  revised  and  consolidated,  and  including  also  the 
amendatory  acts  passed  by  Congress  between  that  date  and 
the  year  1878,  shall  be  legal  evidence  of  the  laws  therein  con- 
tained, in  all  the  courts  of  the  United  States  and  of  the  several 
States  and  Territories,  but  shall  not  preclude  reference  to,  nor 
control,  in  case  of  any  discrepancy,  the  effect  of  any  original 
act  as  passed  by  Congress  since  December  i,  1873.  And 
copies  of  the  acts  of  Congress,  printed  as  aforesaid  at  the 
close  of  each  session  of  Congress,  shall  be  legal  evidence  of 
the  laws  and  treaties  therein  contained,  in  said  courts.' 

It  is  common  for  State  statutes  to  provide  that  the  statute- 
law  of  that  State,  and  of  other  States  and  Territories,  and  of 
the  United  States,  may  be  read  in  evidence  in  its  courts  from 
a  printed  book,  paper,  or  other  publication,  duly  published 
under  official  authority  and  direction.]  ^ 


[*  For  the  original  article,  see  Note  L.] 

'  [KiTt£ynan  v.  Coivles^  103  Mass.  283  ;  Brainardv.  Fowler,  119  id.  262  ; 

Lothrop  V.  Blake,  3  Barr  (Pa.),  483  ;  Gr.  Ev.  i.  §  489,  505.     Some  States 

have  adopted  special  statutes  of  this  kind  (Mass.  Pub.  St.  c.  169,  %  67)  ; 

but  usually  the  modes  prescribed  by  the  acts  of  Congress  are  followed.] 

=  [U.  S.   Rev.    St.  (ed.    1878),  Appendi.x,   pp.   1090- 1092  ;  so  as  to  the 

supplement  to  the  Revised  Statutes  (21  Stat.  L.  308  :  see  Wright  v.  U.  S., 

15  Ct.  of  CI.  80)  ;  the  acts  of  Congress  were  formerly  published  by  Little 

and  Brown,  of  Boston,  and  it  is  provided  also  that  their  edition  shall  be  evi  - 

dence  of  the  laws  and  treaties  therein  contained.     U.  S.  Rev.  St.  ^  908.] 

3  [See  Mass.  Pub.  St.,  c.  169,  ^  69,  71  ;  N.  Y.  Code  Civ.  Pro.  $$  932, 

942,  extending  the  same  rule    to    printed  copies  of   any   proclamation, 


I  so  A  DIGEST  OF  [Part  II. 

Article  82.* 
[proof  of  the  statutes  of  any  state  or  territory.] 

[The  acts  of  the  legislature  of  any  State  or  Territory,  or  of 
any  country  subject  to  the  jurisdiction  of  the  United  States, 
shall  be  authenticated  by  having  the  seals  of  such  State,  Ter- 
ritory, or  country  affixed  thereto,  and  shall  then  be  admitted 
in  evidence  in  every  other  court  within  the  United  States.' 

But  this  provision  does  not  preclude  the  several  States  from 
establishing  other  modes  of  proving  in  their  own  courts  the 
written  law  of  other  States.]  " 

Article  83.* 

[proclamations,  acts  of  state,  legislative  jour- 
nals, ETC.] 

[The  contents  of  State  papers,  public  documents,  and  legis- 
lative journals,  printed  by  the  official  printer  under  the  author- 
ity of  Congress  or  a  State  legislature  respectively  (or  of  the 
proper  branch  thereof),'  may  be  proved  by  the  production  of 
such  a  printed  copy,  as  well  as  by  the  production  of  the  orig- 


[*  For  the  original  article,  see  Note  L.] 
edict,  decree,  or  ordinance,  by  the  executive  power  of  any  other  State 
or  country.  In  some  States  where  no  statutes  exist  authorizing  the 
statute-law  of  other  States  to  be  read  from  a  printed  volume,  this  has  yet 
been  allowed  by  the  courts.  Gr.  Ev.  i.  %%  480,  489.  The  common-law 
mode  of  proof  is  by  exemplification  under  the  great  seal,  or  by  examined 
copy,  and  this  may  still  be  used.  (Id.)  As  to  the  cases  in  which  statutes 
are  judicially  noticed,  see  Art.  58  (i),  ante ;  see  also  Art.  49,  note  2.] 

'  [U.  S.  Rev.  St.  §  905  ;  Bump's  Fed.  Pro.,  p.  566  ;  Grant  v.  Coal  Co., 
80  Pa.  St.  208  ;    U.  S.  V.  Amedy,  11  Wheat.  392.] 

"^  [Gr.  Ev.  i.  §  489  ;  as  to  the  other  modes  of  proof  allowed,  see  pre- 
ceding article  and  note  3  ;  also  Art.  49,  note  2  ;  this  last  article  also 
shows  the  mode  of  proving  the  common-law  of  other  States.] 

^[IVAiio/i  V.  Albany,  etc.  Ins.  Co.,  109  Mass.  24.] 


Chap.  X.]         THE  LAW  OF  EVIDENCE.  151 


inals.'      Executive  proclamations  and   acts  of  state   may   be 
proved  by  an  officially  printed  copy.' 

Extracts  from  the  journals  of  the  Senate  of  the  United 
States,  or  of  the  House  of  Representatives,  and  from  the  execu- 
tive journal  of  the  Senate  when  the  injunction  of  secrecy  is  re- 
moved, certified  by  the  secretary  of  the  Senate  or  by  the  clerk 
of  the  House  of  Representatives,  shall  be  admitted  as  evidence 
in  the  courts  of  the  United  States,  and  shall  have  the  same 
force  and  effect  as  the  originals  would  have,  if  produced  and 
authenticated  in  court.]' 


Article  84.* 

[foreign  written  laws,  acts  of  state,  records,  etc.] 

[Foreign  written  laws,  acts  of  state,  and  judicial  records 
may  be  proved  by  an  exemplification  of  a  copy  under  the  great 
seal  of  the  state,  or  by  a  copy  proved  to  be  a  true  copy  by 
a  witness  who  has  examined  and  compared  it  with  the  original, 
or  by  a  certificate  of  an  officer  properly  authorized  by  law  to 
give  a  copy,  which  certificate  must  itself  be  duly  authenticated.'* 
Moreover,  in  some  jurisdictions,  a- foreign  written  law  may  be 
proved  by  the  statute  book  containing  it,  officially  published 


[*  For  the  original  article,  see  Note  L.] 

'  [Gr.  Ev.  i.  §  479  ;  Watkins  v.  Hclman,  16  Pet.  25  ;  Bryan  v.  Forsyth, 
19  How.  (U.  S.)  334  ;  Gregg  v.  Forsyth,  24  Id.  179 ;  Root  v.  King,  7  Cow. 
613;  Post  V.  Supervisors,  105  U.   S.  667.] 

^  [Gr.  Ev.  i.  %^  479,  492  ;  Lvrton  v.  Gilliam^  2  111.  (i  Scam.)  577  ;  but 
proclamations  are,  in  general,  judicially  noticed  ;  see  ante.  Art.  58. 

There  is  a  statute  in  New  York  as  to  the  proof  of  executive  decrees 
and  proclamations  of  other  States  and  countries  ;  see  ante^  Art.  81,  n.  3.] 

5  [U.  S.  Rev.  St.  $  895.  For  alike  rule  in  State  courts,  see  Post  v.  Su- 
pervisors, 105  U.  S.  667  ;  cf  Sotithwark  Bk.  v.  Comm.,  26  Pa.  St.  446.] 

<  [These  are  the  recognized  common-law  methods.  Gr.  Ev.  i.  $§  488, 
514  ;  Yeaton  v.  Fry^  5  Cr.  345  ;  Lincoln  v.  BattelU,  6  Wend.  475  ;  Watson 
V.   Walker,  3  Foster,  471.] 


152  A  DIGEST  OF  [Part  II. 


by  the  government  which  made  the  law,  either  with  or  with- 
out the  testimony  of  experts.]  ' 

'  [This  is  provided  in  some  States  by  statute  (Mass.  Pub.  St. ,  c.  169,  §  73 ; 
Maine  Rev.  St.,  c.  82,  §  109  ;  N.  Y.  Code  Civ.  Pro.  $  942  ;  Art.  49,  note  2, 
ante),  but  is  declared  in  Eiin'n  v.  Smith,  14  How.  (U.  S.)  401,  as  a  com- 
mon-law doctrine  ;  but  see  Hynes  v.  McDcr^nott,  82  N.  Y.  41,  56.  Some- 
times expert  testimony  is  received  without  a  printed  copy  of  the  law  ; 
see  Art.  49,  note  2,  ante,  which  also  states  the  mode  of  proving  a  foreign 
unwritten  law.  As  to  proof  of  the  statutes  of  sister  States,  see  Art.  81, 
note,  and  Art.  82,  ante. 

Special  State  statutes  are  also  in  force,  establishing  modes  of  proving 
foreign  records,  etc.  N.  Y.  Code  Civ.  Pro.  §1$  952-956.  But  these  are 
not  generally  made  exclusive  of  common-law  methods.     Id.  §  962.] 


Chap.  XI.]        THE  LAW  OF  EVIDENCE.  153 


CHAPTER  XI. 

PRESUMPTIONS  AS    TO  DOCUMENTS. 

Article  85. 

presumption  as  to  date  of  a  document. 

When  any  document  bearing  a  date  has  been  proved,  it  is 
presumed  to  have  been  made  on  the  day  on  which  it  bears 
date,'  and  if  more  documents  than  one  bear  date  on  the  same 
day,  they  are  presumed  to  have  been  executed  in  the  order 
necessary  to  effect  the  object  for  which  they  were  executed,^  but 
independent  proof  of  the  correctness  of  the  date  will  be  re- 
quired if  the  circumstances  are  such  that  collusion  as  to  the 
date  might  be  practised,  and  would,  if  practised,  injure  any 
person,  or  defeat  the  objects  of  any  law.' 

Illustrations. 
(a)  An  instrument  admitting  a  debt,  and  dated  before  the  act  of  bank- 
ruptcy, is  produced  by  a  bankrupt's  assignees,  to  prove  the  petitioning 


'  [Gr.  Ev.  i.  §  40,  n.  ;  Wh.  Ev.  ii.  %  977  ;  Livingston  v.  Arnoux,  56  N.  Y. 
507,  519  ;  Smith  v.  Porter,  10  Gray,  66  ;  Pringle  v.  Pringle,  59  Pa.  St. 
281  ;  so  a  deed  is  presumed  to  have  been  delivered  on  the  day  of  its  date 
{People  V.  Snyder,  41  N.  Y.  397)  ;  but  this  is  not  true  of  forged  instru- 
ments ;  Remington  Co.  v.  O' Dougherty,  81  N.  Y.  474.  The  presumption 
as  to  all  instruments  may  be  rebutted  by  proof  of  the  real  date  of  execu- 
tion. Parke  v.  A'eeley.^  90  Pa.  St.  52  ;  Germania  Bank  v.  Distler.,  67 
Barb.  333,  64  N.  Y.  642  ;  Smith  v.  Shoetnaker,  17  Wall.  63.] 

2  [yones  V.  Phelps,  2  Barb.  Ch.  400  ;  see  Oilman  v.  Moody,  43  N.  II. 
239  ;  so  it  is  a  general  principle  that  two  instruments  of  the  same  date, 
between  the  same  parties,  and  relating  to  the  same  subject  matter,  form 
parts  of  the  same  agreement  or  transaction.  Mott  v.-  Richtmyer,  S7  N. 
Y.  49.  65.] 

3 1  Ph.  Ev.  482-3 ;  T.  E.  s.  137  ;  Best,  s.  403  ;  [see  Philpoiv.  Gruninger, 
14  Wall.  570.] 


154  A  DIGEST  OF  [Part  II. 

creditor's  debt.  Further  evidence  of  the  date  of  the  transaction  is  re- 
quired in  order  to  guard  against  collusion  between  the  assignees  and  the 
bankrupt,  to  the  prejudice  of  creditors  whose  claims  date  from  the  inter- 
val between  the  act  of  bankruptcy  and  the  adjudication.' 

{b)  In  a  petition  for  damages  on  the  ground  of  adultery  letters  are  pro- 
duced between  the  husband  and  wife,  dated  before  the  alleged  adultery, 
and  showing  that  they  were  then  on  affectionate  terms.  Further  evidence 
of  the  date  is  required  to  prevent  collusion  to  the  prejudice  of  the  per- 
son petitioned  against.* 

Article  86. 
presumption  as  to  stamp  of  a  document.^ 

When  any  document  is  not  produced  after  due  notice  to 
produce,  and  after  being  called  for,  it  is  presumed  to  have  been 
duly  stamped,*  unless  it  be  shown  to  have  remained  unstamped 
for  some  time  after  its  execution.^ 


Article  87. 

presumption  as  to  sealing  and  delivery  of  deeds. 

When  any  document  purporting  to  be  and  stamped  as  a 
deed,  appears  or  is  proved  to  be  or  to  have  been  signed  and 


» Anderson  v.  Wesiot,  6  Bing.  N.  C.  302 ;  Sinclair  v.  Baggallay,  4  M.  & 
W.  318. 

s  Houlston  v.  Smith,  2  C.  &  P.  24  ;  [Gr.  Ev.  i.  $  102,  ii.  $  57  ;  see  Art. 
II,  Illustration  {k),  ante.'\ 

3  [The  general  abolition  in  this  country  of  the  laws  requiring  the  use  of 
stamps  upon  written  instruments  renders  this  article  of  little  or  no  im- 
portance here.  Some  analogous  decisions  of  interest  under  the  former 
law  requiring  revenue  stamps  are  Va?i  Rensellaer  v.  Vickery,  3  Lans.  57  ; 
Long  V.  Spencer,  78  Pa.  St.  303  ;  for  a  case  in  which  stamps  were  used  as 
seals,  see  Van  Bokkelen  v.  Taylor,  62  N.  Y.  105.] 

*  Closmadeuc  v.  Carrel,  18  C.  B.  44.  In  this  case  the  growth  of  the  rule 
is  traced,  and  other  cases  are  referred  to,  in  the  judgment  of  Cresswell,  J. 

*  Marine  Investment  Co,  V.  liayiside,  L.  R.  5  E.  &  I.  App.  624. 


Chap.  XI.]        THE  LAW  OF  EVIDENCE.  155 

duly  attested,  it  is  presumed  to  have  been  sealed  and  deliv- 
ered, although  no  impression  of  a  seal  appears  thereon.' 


'  Hall  V.  Bainbridge,  12  Q.  B.  699-710.  Re  Sandilands,  L.  R.  6  C.  P. 
411.  [These  cases,  so  far  as  they  support  this  article,  are  based  upon 
the  English  rule,  that  neither  an  impression  upon  wax  or  other  tenacious 
substance,  nor  a  scroll  or  other  mark,  is  necessary  to  constitute  a  seal. 
But  in  this  country  the  general  rule  is  that  no  deed  or  other  specialty  is 
complete  without  a  seal  in  one  or  the  other  of  these  forms.  If,  therefore, 
an  instrument  has  no  seal  upon  it,  in  the  form  recognized  as  valid  in  the 
particular  State,  the  fact  that  it  purports  to  be  sealed,  and  is  attested  as 
such,  is  not  sufficient  to  make  it  a  deed.  Chilion  v.  People,  66  111.  501  ; 
State  V.  Humbird,  54  Md.  327  ;  State  v.  Thompson,  49  Mo.  188  ;  Taylor  v. 
Glaser,  2  S.  &  R.  431 ;  Corlies  v.  Van  iXote,  16  N.  J.  L.  324.  But  where 
a  deed  is  proved  by  the  public  records,  and  no  seal  has  been  recorded, 
like  circumstances  as  to  the  purport  of  the  deed,  etc.,  will  raise  the  pre- 
sumption of  a  seal  upon  the  original.  Flowery  Co.  v.  Bonanza  Co.,  16 
Nev.  302  ;  Starkweather  v.  Martiti,  28  Mich.  471  ;  cf.  Geary  v.  Kansas,  61 
Mo.  378  ;  contra,  Switzcr  v.  Knapps,  10  la.  72.  If  a  seal  is  omitted  by 
mfstake,  equity  will  cause  the  omission  to  be  supplied  or  will  disregard 
it.  Harding  v.  Jeivell,  73  Me.  426  ;  Montville  v.  Haughton,  7  Ct.  543 ; 
Rutland  v.  Paige,  24  Vt.  181. 

If  an  instrument,  when  given  in  evidence,  bears  a  seal,  this  is  pre- 
sumed to  be  the  seal  of  the  party  signing  {Mill  Dam  Co.  v.  Hovey,  21 
Pick.  417,  428;  Trustees  v.  McKechnie,  90  N.  Y.  618)  ;  and  upon  proof  of 
the  signature,  it  may  be  presumed  that  the  instrument  was  regularly 
sealed  and  delivered,  especially  if  there  be  a  recital  stating  the  fact  of 
sealing  ;  such  recital  is,  however,  by  the  weight  of  authority,  held  un- 
necessary. Merritt  v.  Cornell,  1  E.  D.  Sm.  335  ;  Miller  v.  Binder,  28  Pa. 
St.  489 ;  Bradford  v.  Randall,  5  Pick.  496  ;  Trasker  v.  Everhart,  3  G.  &  J. 
234  ;  Force  v.  Craig,  7  N.  J.  L.  272 ;  A?tthony  v.  Harrison,  14  Hun,  200, 
74  N.  Y.  613  ;  but  see  Clegg  v.  Lemessurier,  15  Gratt.  108.  But  the  pre- 
sumption is  rebuttable.  Koehler  v.  Black  River  Co.,  2  Black,  715.  Still 
the  fact  that  an  instrument  bears  a  seal  and  also  pvirports  to  be  sealed  is 
evidence  for  the  jury  that  it  was  sealed  when  signed,  though  the  obligor 
denies  this.  Brolley  v.  Lapham,  13  Gray,  294 ;  State  v.  Peck,  53  Me.  284, 
286. 

So  when  a  deed  with  the  regular  evidence  of  its  execution  upon  its  face 
is  found  in  the  hands  of  the  grantee,  it  is  presumed  to  have  been  duly  de- 
livered (  Wardv.  Lciuis,  4  Pick.  518  ;  Story  v.  Bishop,  4  E.  D.  Sm.  423)  ; 
so  if  it  is  upon  record  duly  acknowledged  and  attested,     Lawrence  v. 


156  A  DIGEST  OF  [Part  II. 

Article  88. 

presumption  as  to  documents  thirty  years  old. 

Where  any  document  purporting  or  proved  to  be  thirty  years 
old  is  produced  from  any  custody  which  the  judge  in  the  par- 
ticular case  considers  proper,  it  is  presumed  that  the  signature 
and  every  other  part  of  such  document  which  purports  to  be  in 
the  handwriting  of  any  particular  person  is  in  that  person's 
handwriting,  and,  in  the  case  of  a  document  executed  or  at- 
tested, that  it  was  duly  executed  and  attested,  by  the  persons 
by  whom  it  purports  to  be  executed  and  attested  ; '  and  the 
attestation  or  execution  need  not  be  proved,  even  if  the  attest- 
ing witness  is  alive  and  in  court.* 


Farley,  24  Hun,  293  ;  McCurdy's  Appeal,  65  Pa.  St.  290.  But  this  pre- 
sumption is  also  rebuttable.  Knolls  v.  Bambart,  71  N.  Y.  474;  see  Washb. 
R.  P.  iii.  292  (4th  ed).] 

'  2  Ph.  Ev.  245-8  ;  Starkie,  521-6  ;  T.  E.  s.  74  and  ss.  593-601  ;  Best,  s. 
220.  [Wh.  Ev.  i.  $^  194-199,  703,  732;  Gr.  Ev.  i.  %%  21,  142-144,  570; 
Winn  V.  Paterson,  9  Pet.  663  ;  Cahill  v.  Palmer,  45  N.  Y.  478  ;  Schaiff 
V.  Keener,  64  Pa.  St.  376  ;  Berry  v.  Raddin,  11  Allen,  579;  Goodwin  v. 
yack,  62  Me.  414.  The  age  of  a  will  under  this  rule  is  reckoned  from  the 
testator's  death.  Stari7ig  v.  Boiuen,  6  Barb.  109.  It  has  been  a  mooted 
question,  whether,  if  the  document  were  a  conveyance  of  land,  it  would 
be  necessary  to  prove,  besides  its  age  and  its  production  from  the  proper 
custody,  that  there  had  been  possession  of  the  land  under  it  and  in  accord- 
ance with  its  terms.  The  better  opinion  is  that  evidence  of  possession  is 
not  strictly  necessary,  but  other  corroborative  evidence  may  be  received 
to  establish  the  genuineness  of  the  instrument.  Whitman  v.  Heneberry, 
73  111.  109;  Walker  v.  Walker,  67  Pa.  St.  185  ;  see  Boston  v.  Richardson, 
105  Mass.  351  ;  Clark  v.  Owens,  18  N.  Y.  434 ;  Enders  v.  Steenber^h,  2 
Abb.  Dec.  31 ;  see  Gr.  Ev.  i.  §  144,  n.  But  evidence  of  possession  is  the 
best  means  of  corroboration,  and  should  be  produced  when  practicable. 
Willson  V.  Belts,  4  Den.  202.  Unless  there  be  some  satisfactory  corrob- 
oration, the  execution  of  the  document  must  be  proved  ;  its  age  alone 
is  not  enough  to  authenticate  it.  yackson  v.  Luquere,  5  Cow.  221 ; 
Martin  v.  Rector,  24  Hun,  27.] 

2  {Jackson  V.  Christman,  4  Wend.  277  ;  McReynolds  v.  Lon§c7iber§er, 
57  Pa.  St.  13.1 


Chap.  XI.]        THE  LAW  OF  EVIDENCE.  157 

Documents  are  said  to  be  in  proper  custody  if  they  are  in 
the  place  in  which,  and  under  the  care  of  the  person  with 
whom,  they  would  naturally  be  ;  but  no  custody  is  improper 
if  it  is  proved  to  have  had  a  legitimate  origin,  or  if  the  cir- 
cumstances of  the  particular  case  are  such  as  to  render  such  an 
origin  probable.' 

Article  89. 
presumption  as  to  alterations. 

No  person  producing  any  document  which  upon  its  face 
appears  to  have  been  altered  in  a  material  part  can  claim 
under  it  the  enforcement  of  any  right  created  by  it,  unless  the 
alteration  was  made  before  the  completion  of  the  document  or 
with  the  consent  of  the  party  to  be  charged  under  it  or  his 
representative  in  interest.^ 

This  rule  extends  to  cases  in  which  the  alteration  was  made 
by  a  stranger,  whilst  the  document  was  in  the  custody  of  the 
person  producing  it,  but  without  his  knowledge  or  leave.' 


'  [See  cases  in  notes  i  and  2,  supraj^ 

*  [Gr.  Ev.  i.  §  565  ;  Angle  v.  Life  Ins.  Co.,  92  U.  S.  330;  Drum  v. 
Drum,  133  Mass.  566 ;  Hunt  v.  Gray,  35  N.  J.  L.  227.  A  material  altera- 
tion by  a  party  after  execution  avoids,  though  innocently  made  (Booth  v. 
Potoers,  56  N.  Y.  22  ;  Eckert  v.  Pickel.^q  la.  545  ;  Craighead^.  McLoney, 
99  Pa.  St.  211),  but  then,  in  the  case  of  a  contract,  a  recovery  maybe  had 
on  the  original  consideration  (Id.;  Hunt  v.  Gray^  supra) ;  aliter,  if  the  al- 
teration be  fraudulent.  Meyer  v.  Huneke,  55  N.  Y.  412.  A  negotiable 
instrument,  materially  altered  by  a  party,  is  void  even  in  the  hands  of  an 
innocent  purchaser  for  value.  Benedict  v.  Cowden,  49  N.  Y.  396  ;  Angle 
V.  Life  Ins.   Co. ,  supra. 

Alterations  in  a  deed  will  not  divest  the  title  conveyed  by  it,  though 
they  will,  if  material,  avoid  the  covenants.  Gr.  Ev.  i.  $  265  ;  Hcrrick  v. 
Malin,  22  Wend.  388.  Alterations  before  execution  should  be  noted  in 
the  attestation  clause.  Gr.  Ev.  i.  $  564.  As  to  alterations  by  consent  or 
authority,  see  Penny  v.  Corwithc.,  18  Johns.  499  ;  Taddiker  v.  Cantrcll,  69 
N.  Y.  597.  But  alterations  by  consent  of  parties  may  avoid  the  instru- 
ment as  to  sureties.  Paine  v.  Jones,  76  N.  Y.  274  ;  Eckert  v.  Louis,  84 
Ind.  99.] 

3  Pigot's  Case,  11  Rep.  47  ;  Davidson  v.  Cooper.,  11  M.  &  W.  778  ;  13 


158  A  DIGEST  OF  [Part  II. 

Alterations  and  interlineations  appearing  on  the  face  of  a  deed 
are,  in  the  absence  of  all  evidence  relating  to  them,  presumed 
to  have  been  made  before  the  deed  was  completed.' 


M.  &  W.  343  ;  Aldous  v.  Cornwell,  L.  R.  3  Q.  B.  573.  This  qualifies  one 
of  the  resolutions  in  Pigot's  Case.  The  judgment  reviews  a  great  num- 
ber of  authorities  on  the  subject.  [This  doctrine  is  asserted  in  Marcy  v. 
Dun  lap,  5  Lans.  365;  but  generally  in  this  country  it  is  held  that  un- 
authorized alterations  by  a  stranger,  even  though  material,  do  not  affect 
the  validity  of  the  document  {Drum  v.  D)-u!?i,  133  Mass.  566 ;  Robertson 
V.  Hay,  91  Pa.  St.  242  ;  Hu7it  v.  Gray,  35  N.  J.  L.  227  ;  Bigelow  v.  Stil- 
phens,  35  Vt.  521  ;  Waritig  v.  Smyth,  2  Barb.  Ch.  119),  and  the  fact  that 
the  document  is  in  the  party's  custody  at  the  time  seems  to  make  no 
difference.  (Id.)  The  stranger's  act  is  called  a  "  spoliation,"  rather  than 
an  alteration.     Gr.  Ev.  i.  $  566.] 

1  Doe  V.  Catomore,  16  Q.  B.  745.  [The  American  rule  differs  from  the 
English  in  many  States,  though  there  is  much  diversity  of  doctrine  in  the 
different  States.  It  is  generally  agreed,  however,  that  if  a  material  altera- 
tion appear  upon  the  face  of  a  document,  and  be  suspicious  in  its  charac- 
ter and  beneficial  to  the  party  claiming  the  enforcement  of  a  right  under 
the  document,  the  burden  of  proof  is  upon  such  party  to  show  that  the 
alteration  was  made  before  or  at  the  time  of  execution,  or  is  for  other  rea- 
sons proper  or  excusable  ;  and  if  evidence  be  adduced  to  explain  any 
material  alteration,  it  is  submitted  to  the  jury,  who  are  to  determine  as  a 
question  of  fact,  when,  by  whom,  and  for  what  reasons  the  alteration  was 
made.  Smith  v.  AIcGowan,  3  Barb.  404  (deed)  ;  IVaring  \.  Smyth,  2 
Barb.  Ch.  119  (bond  and  mortgage)  ;  U.  S.  v.  Linn,  1  How.  (U.  S.)  104 
(bond)  ;  Robinson  v.  Myers,  67  Pa.  St.  9  (deed)  ;  Comstock  v.  Smith,  26 
Mich.  306  (deed);  Ely  v.  Ely,  6  Gray,  439 (mortgage);  Drum  v.  Drum,  133 
Mass.  566  (note);  Dodge  v.  Haskell,  69  Me.  429  (note);  Paramore  v.  Lind- 
sey,  63  Mo.  63  (note).  But  if  the  alteration  be  not  suspicious,  such  ex- 
planatory evidence  is  not  required.  Feig  v.  Meyers,  102  Pa.  St.  ifc  (deed); 
Munroe  v.  Eastman,  31  Mich.  283  (deed)  ;  Paramore  v.  Lii/dsey,  supra  ; 
see  Crossjnan  v.  Crossmau,  95  N.  Y.  145,  153. 

In  some  States,  however,  it  is  held  that  if  the  party  who  is  bound  to  ex- 
plain a  suspicious  alteration  offers  no  evidence  for  the  purpose,  the  docu- 
ment may  be  rejected  by  the  court  as  inadmissible  in  evidence  ;  (this  is 
the  English  rule  oi  Knight  v.  Clements,  8  A.  &  E.  215);  Burgwin  v.  Bishop, 
91  Pa.  St.  336  (lease);  Tillou  v.  Clinton,  etc.  Ins.  Co.,  7  Barb.  564  (written 
consent);  but  see  May  bee  v.  Sniffen,  2  E.  D.  Sm.  i  (release).  In  other 
States,  the  document,  upon  proof  of  execution,  is  submitted  to  the  jury 


Chap.  XI.]       THE  LAW  OF  E VIDENCE.  1 59 

Alterations  and  interlineations  appearing  on  the  face  of  a 
will  are,  in  the  absence  of  all  evidence  relating  to  them,  pre- 
sumed to  have  been  made  after  the  execution  of  the  will.' 

There  is  no  presumption  as  to  the  time  when  alterations  and 
interlineations,  appearing  on  the  face  of  writings  not  under 
seal,  were  made,'  except  that  it  is  presumed  that  they  were  so 
made  that  the  making  would  not  constitute  an  offence.' 

An  alteration  is  said  to  be  material  when,  if  it  had  been  made 

in  all  cases  of  alteration,  with  or  without  explanatory  evidence  aliunde, 
so  that  they  may  determine  from  its  inspection,  when,  and  for  what  pur- 
pose, the  alteration  was  made  {Hoey  v.  yarman,  39  N.  J.  L.  523  (specialty); 
Dodge  V.  Haskell,  supra  ;  Cole  v.  Hills^  44  N.  H.  227  ;  cf.  Hayden  v.  Good- 
?iow,  39  Ct.  164);  but  the  jury  must  be  satisfied  by  a  preponderance  of 
evidence  that  any  material  alteration  was  rightfully  made,  and  in  the 
absence  of  evidence  to  show  this,  a  verdict  against  the  validity  of  the  in- 
strument will  be  sustainable,  or  may  be  directed.  Id.;  Putnam  v.  Clark, 
33  N.  J.  Eq.  343. 

Under  both  these  theories,  it  is  sometimes  said  that  there  is  a  presump- 
tion oifact  that  a  material  alteration,  not  sufficiently  explained,  was  made 
after  execution.  It  is  denied,  however,  that  there  is  any  presumption  of 
la'd)  as  to  the  time  of  alteration,  in  such  a  case,  though  such  a  doctrine 
has  been  often  asserted.  Ely  v.  Ely,  Comstock  v.  Smith,  supra.  But  in 
some  States,  the  presumption  is  that  such  an  unexplained  alteration  was 
made  before  or  at  the  time  of  execution.  Neilw  Case,  25  Kan.  510  (note); 
Beatnan  v.  Russell,  20  Vt.  205  ;  Little  v.  Herttdon,  10  Wall.  26  (asserting 
this  as  to  deeds,  following  the  English  rule).  By  some  authorities  there  is 
a  presumption  of  law  that  suspicious  alterations  were  made  after  execu- 
tion, but  other  alterations  before.  Cox  v.  Palmer,  i  McCrary,  431 
(mortgage).     And  there  are  other  theories  also  on  this  vexed  subject. 

In  general,  each  State  applies  the  same  rule  to  deeds,  bills  and  notes, 
written  contracts  of  any  kind,  and  other  like  documents.  As  to  wills,  see 
next  note.] 

'  Simmons  v.  Rudall,  i  Sim.  (N.  S.)  136.  [ll'etmore  v.  Carry/,  5  Redf. 
544  ;  Toebbe  v.  Williams,  80  Ky.  661  ;  contra,  Wikoff's  Case,  15  Pa.  St. 
281  ;  see  Van  Buren  v.  Cockburn,  14  Barb.  118  ;  Charles  v.  Huber,  78  Pa. 
St.  448.  As  to  the  effect  of  alterations  after  execution,  see  Quinn  v. 
Quinn^  I  T.  &  C.  437  ;  Eschbach  v.  Collins,  6r  Md.  478  ;  Bigclow  v.  (7/7- 
lott^  123  Mass.  102  ;  Haynes  v   Haynes,  33  O.  St.  598.] 

■  Knight  v.  Clements^  8  A.  &  E.  215  ;   [see  p.  158,  note  i,  siipra.\ 

'  R.  v.  Gordon,  Dears.  592  ;  [see  yordan  v.  Stewart,  23  Pa.  St.  244,] 


i6o  A  DIGEST  OF  [Part  II. 

with  the  consent  of  the  party  charged,  it  would  have  affected 
his  interest  or  varied  his  obligations  in  any  way  whatever.' 

An  alteration  which  in  no  way  affects  the  rights  of  the  parties 
or  the  legal  effect  of  the  instrument,  is  immaterial.' 


'  [Craighead y.  McLoney^  99  Pa.  St.  211 ;  Booth  v.  Powcn,  56  N.  Y.  22  ; 
Adair  v.  England,  58  la.  314 ;  Wood  v.  Steele,  6  Wall.  £0.  Whether  an 
alteration  is  material  or  not,  is  a  question  for  the  court.  Id.;  Belfast  Bk. 
V.  Harriman^  68  Me.  522  ;  Keens'  Excr.,  75  Va.  424.] 

2  This  appears  to  be  the  result  of  many  cases  referred  to  in  T.  E.  ss. 
1619-20  ;  see  also  the  judgments  in  Da-ndson  v.  Cooper  and  Aldotis  v. 
Cornwell,  referred  to  above.  [Immaterial  alterations  by  a  party  or  stran- 
ger do  not  avoid  an  instrument  (Casoni  v.  yerome,  58  N.  Y.  315  ;  Shitler 
V.  Gillette,  12  Hun,  278  ;  Robertson  v.  Hay,  91  Pa.  St.  242  ;  Cushing  v. 
Field,  70  Me.  50;  Ames  v.  Colburn,  11  Gray,  390),  unless,  perhaps,  when 
they  are  made  by  a  party  with  fraudulent  intent,  but  this  is  doubtful ;  see 
Gr.  Ev.  i.  §  568  ;  Daniel,  Neg.  Inst.  ii.  ^  1416 ;  Comm.  v.  Ernigrant  Sav.  Bk., 
98  Mass.  12.  If  blank  spaces  are  left  in  a  negotiable  bill  or  note  so  that  it 
is  incomplete,  any  bona  fide  holder  may  fill  them  up,  and  the  instrument 
will  be  valid  in  the  hands  of  an  innocent  purchaser  for  value.  Rcdlich  v. 
Doll^  54  N.  Y.  234  ;  Angle  v.  Life  Ins.  Co.,  92  U.  S.  330 ;  Abbott  v.  Rose, 
62  Me.  194  ;  Garrard  \.  Lewis,  10  Q.  B.  D.  30.  But  unwritten  spaces  in 
a  complete  note  or  bill  cannot  be  so  filled.  McGrath  v.  Clark,  56  N.  Y. 
34  ;  Brtice  v.  Westcott,  3  Barb.  374  ;  Cronkhite  v.  Ncbeker,  81  Ind.  319 ; 
Greenfield  Sav.  Bk.  v.  Stowell,  123  Mass.  196.  But  there  are  cases  to  the 
contrary,  which  are  collected  in  this  last  decision.  As  to  filling  blanks  in 
deeds,  see  Washb.  R.  P.  iii.  240-243  (4th  ed.);  Bell  v.  Kennedy.,  100  Pa. 
St.  215.] 


Chap.  XII.]       THE  LAW  OF  EVIDENCE. 


CHAPTER   XII. 

OF  THE  EXCLUSION  OF  ORAL  BY  DOCUMENTARY 
EVIDENCE,  AND  OF  THE  MODIFICATION  AND 
INTERPRETATION  OF  DOCUMENTARY  BY  ORAL 
EVIDENCE. 

Article  90.* 

evidence  of  terms  of  contracts,  grants,  and  other 
dispositions  of  property  reduced  to  a  document- 
ARY  FORM. 

When  any  judgment  of  any  Court  or  any  other  judicial  or 
official  proceeding,  or  any  contract  or  grant,  or  any  other  dis- 
position of  property,  has  been  reduced  to  the  form  of  a  docu- 
ment or  series  of  documents,  no  evidence  may  be  given  of 
such  judgment  or  proceeding,  or  of  the  terms  of  such  con- 
tract, grant,  or  other  disposition  of  property,  except  the  docu- 
ment itself,  or  secondary  evidence  of  its  contents  in  cases  in 
which  secondary  evidence  is  admissible  under  the  provisions 
hereinbefore  contained.'  Nor  may  the  contents  of  any  such 
document  be  contradicted,  altered,  added  to,  or  varied  by  oral 
evidence.'' 


*See  Note  XXXII. 

1  Illustrations  {a)  and  {b).  [But  contemporaneous  writings  between 
the  same  parties,  relating  to  the  same  subject-matter,  are  admissible  in 
evidence.     Gr.  Ev.  i.  %  283  ;    Wilson  v.  Randall,  67  N.  Y.  338.] 

'  [Gr.  Ev.  i.  §$  275-282  ;  Wh.  Ev.  ii.  §§  920-927.  This  rule  of  the  En- 
glish courts  is  well  established  in  this  country.  Mott  v.  Richtmycr,  57 
N.  Y.  49;  Martin  v.  Cole,  104  U.  S.  30  ;  Black  v.  Bachclder,  120  Mass. 
171 ;  Mat-titi  v.  Berens,  6j  Pa.  St.  459  ;  Naiimberg  v.  Yomrg,  44  N.  J.  I>. 
331.  But  in  Pennsylvania  it  is  applied  with  less  stringency  than  in  other 
States.  Greenawalt  v.  Kohne,  85  Pa.  St.  369.  The  rule  as  to  wills  is  the 
same  as  in  respect  to  other  instruments.     Parol  evidence  is  not  received 


A  DIGEST  OF  [Part  II. 


Provided  that  any  of  the  following  matters  may  be  proved — 
(i)  Fraud,  intimidation,  illegahty,  want  of  due  execution, 
want  of  capacity  in  any  contracting  party,  the  fact  that  it  is 
•wrongly  dated,'  want  or  failure  of  consideration,  or  mistake 
in  fact  or  law,  or  any  other  matter  which,  if  proved,  would 
produce  any  effect  upon  the  validity  of  any  document,  or  of 
any  part  of  it,  or  which  would  entitle  any  person  to  any  judg- 
ment, decree,  or  order  relating  thereto." 


of  the  testator's  oral  declarations  of  intention,  except  in  the  special  cases 
stated  in  the  next  article.  Williams  v.  Freeman,  83  N.  Y.  561  ;  Warren 
V.  Gregg,  116  Mass.  304  ;  Mackie  v.  Story,  93  U.  S.  589  ;  Wallize  v.  Wal- 
lite,  55  Pa.  St.  242  ;   Waldro?i  v.  Waldron,  45  Mich.  350] 

*  Reffell  V.  Reffell^  L.  R.  I  P.  &  D.  139  ;  [Skat/ghnessy  v.  Lewis,  130 
Mass.  355  ;  Barnet  v.  Abbott,  53  Vt.  120 ;  Germania  Bk.  v.  Distler,  67 
Barb.  333,  64  N.  Y.  642.]  Mr.  .Starkie  extends  this  to  mistakes  in  some 
other  formal  particulars.     3  Star.  Ev.  787-8. 

"  Illustration  {c)  ;  [Gr.  Ev.  i.  §$  284,  285  ;  Wh.  Ev.  ii.  j$  930-935,  1009, 
1054  ;  Hall  V.  Erwin,  66  N.  Y.  649  ;  Trambly  v.  Ricard,  130  Mass.  259  ; 
Rowandv.  Finney,  96  Pa.  St.  192  ;  Paine  v.  Upton,  87  N.  Y.  327  (fraud, 
accident,  and  mistake)  ;  Haughwotit  v.  Garrison^  69  N.  Y.  339  (usury)  ; 
Sherman  v.  Wilder,  106  Mass.  537  (illegality)  ;  Anthony  v.  Harrison,  14 
Hun,  198,  74  N.  Y.  613  ;  Eaton  v.  Eaton,  35  N.  J.  L.  290  (want  of  con- 
sideration) ;  so  parol  evidence  is  admissible  to  show  the  real  considera- 
tion of  a  contract  or  deed,  though  different  from  that  expressed  {Hebbard 
V.  Hanghian,  70  N.  Y.  54  ;  Baldwin  v.  Doze,  130  Mass.  416  ;  Holmes' 
Appeal,  79  Pa.  St.  279  ;  Biirnham  v.  Dorr,  72  Me.  198) ;  to  show  a  deed 
to  be  a  mortgage  (Morris  v.  Budlong,  78  N.  Y.  543  ;  Hassam  v.  Barrett, 
IIS  Mass.  256  ;  Logue' s  Appeal,  104  Pa.  St.  136  ;  Peiigh  v.  Davis,  96  U.  S. 
332  ;  this  is  only  true  in  equity  in  most  States)  ;  to  show  a  bill  of  sale  of 
goods  to  be  a  chattel  mortgage  {Smith  v.  Bcattie,  31  N.  Y.  542  ;  Mor- 
gan's Assignees  v.  Shtim,  15  Wall.  105  ;  Booth  v.  Robinson,  55  Md.  419  ; 
this  is  in  equity,  but  not  at  law,  Philbrook  v.  Eaton,  134  Mass.  398)  ;  that  the 
signer  of  an  unsealed  non-negotiable  instrument  signed  as  agent,  not  as 
principal  {JVicoll  w.  Burke,  78  N.  Y.  580  ;  Lcrnedv.  yoties,  9  Allen,  419) ; 
to  show  the  true  relations  of  the  parties  signing  an  instrument  as  between 
themselves,  as  that  they  are  co-sureties  though  they  signed  as  makers, 
and  vice  versa,  etc.  [Mansfield  v.  Edwards,  136  Mass.  15  ;  Paul  v.  Rider, 
58  N.  H.  119;  Hubbard  y.  Gurney,  64  N.  Y.  457;  cf.  Graves  v.  Johnson, 
48  Ct.  160)  ;  that  a  writing  purporting  to  be  a  contract  was  not  intended 
as  such  (Grierson  v.  Mason,  60  N.  Y.  394)  ;  to  show  which  of  two  con- 


Chap.  XI I.J      THE  LAW  OF  EVIDENCE.  163 

{2)  The  existence  of  any  separate  oral  agreement  as  to  any 
matter  on  which  a  document  is  silent,  and  which  is  not  incon- 
sistent with  its  terms,  if  from  the  circumstances  of  the  case  the 
Court  infers  that  the  parties  did  not  intend  the  document  to 
be  a  complete  and  final  statement  of  the  whole  of  the  trans- 
action between  them.' 

(3)  The  existence  of  any  separate  oral  agreement,  consti- 
tuting a  condition  precedent  to  the  attaching  of  any  obligation 
under  any  such  contract,  grant,  or  disposition  of  property.* 

(4)  The  existence  of  any  distinct  subsequent  oral  agreement 
to  rescind  or  modify  any  such  contract,  grant,  or  disposition 
of  property,  provided  that  such  agreement  is  not  invalid  under 
the  Statute  of  Frauds,  or  otherwise.^ 


temporaneous  writings  expresses  the  real  intention  of  the  parties  {Pay son 
V.  Lamson,  134  Mass.  593)  ;  so  receipts  may  be  varied  by  parol  {Hildreth 
V.  O'Brien,  10  Allen,  104  ;  Hotchkiss  v.  Moshcr,  48  N.  Y.  478  ;  Russell  v. 
Church,  65  Pa.  St.  9  ;  Suial/i  v.  Frazier,  35  N.  J.  Eq.  326)  ;  and  there 
are  many  other  like  cases.] 

'  Illustrations  {d),  {<'),  and  (tr)  ;  [Gr.  Ev.  i.  %  284  a;  yuilliard  v. 
Chaffee,  92  N.  Y.  529;  Willis  v.  Hulbert,  117  Mass.  151;  Naumbergs. 
Young,  44  N.  J.  L.  331  ;  Green  v.  Randall,  51  Vt.  67  ;  Bradstreet  v.  Rich, 
72  Me.  233  ;  Bradshaw  v.  Combs,  102  III.  428  ;  but  see  A/ast  v.  Perace,  58 
la.  579  ;  thus  an  independent  collateral  agreement  may  be  shown  by 
parol.      Van  Brunt  v.  Day,  81  N.  Y.  251.] 

2  Illustrations  (/")  and  (g)  ;  {yuilliard  v.  Chaffee,  92  N.  Y.  529,  535 ; 
Wilson  V.  Powers,   131  Mass.  539  ;   O/tazua,  etc.  R.  Co.  v.  Hall,  i  Bradw. 

612  ;  Wendlinger  v.  Smith,  75  Va.  309  ;  Westman  v.  Krumweide,  30  Minn. 
313  ;  Michcls  v.  Olmstcad,  14  F.  R.  219.  Some  of  the  cases  limit  this 
rule  to  instruments  not  under  seal,  but  others  apply  it  to  deeds  as  well. 
Id.;  see  Brackett  v.  Barney,  28  N.  Y.  333. 

But  other  conditions  cannot  be  engrafted  upon  a  writing  by  parol  evi- 
dence (  Wilson  V.  Dcen,  74  N.  Y.  531  ;  Allen  v.  Furbish,  4  Gray,  504  ; 
Hohworth  v.  Koch,  26  O.  St.  33)  ;  in  Pennsylvania,  however,  a  less  strin- 
gent rule  prevails,  and  such  evidence  is  received.  Greenawalt  v.  Kohne, 
85  Pa.  St.  369  ;  cf.  Bonney  v.  Morrill,  57  Me.  368.] 

3  Illustration  {li);  [Gr.  Ev.  i.  ^$  302-304;  Hotner  v.  I/ife  Ins.  Co.,  67 
N.  Y.  478  ;  Meech  v.  Buffalo,  29  N.  Y.  198,  218  ;  Kennebec  Co.  v.  Augusta 
Ins.  Co.,  6  Gray,  204,  207;  Pratt's  AdmVs  v.  U.  S.,  22  Wall.  496  ;  Allen 
V.  Sowerby,  37  Md.  410  ;  generally  the  subsequent  agreement  requires  a 


i64  A  DIGEST  OF  [Part  II. 

(5)  Any  usage  or  custom  by  which  incidents  not  expressly 
mentioned  in  any  contract  are  annexed  to  contracts  of  that 
description  ;  unless  the  annexing  of  such  incident  to  such  con- 
tract would  be  repugnant  to  or  inconsistent  with  the  express 
terms  of  the  contract.' 

Oral  evidence  of  a  transaction  is  not  excluded  by  the  fact 
that  a  documentary  memorandum  of  it  was  made,  if  such 
memorandum  was  not  intended  to  have  legal  effect  as  a  con- 
tract, or  other  disposition  of  property.' 

Oral  evidence  of  the  existence  of  a  legal  relation  is  not 
excluded  by  the  fact  that  it  has  been  created  by  a  document, 
when  the  fact  to  be  proved  is  the  existence  of  the  relation- 
ship itself,  and  not  the  terms  on  which  it  was  established  or 
is  carried  on.^ 


new  consideration  {Courtenay  v.  Fuller,  65  Me.  156;  Alalone  v.  Dough- 
erty, 79  Pa.  St.  46  ;  Stewart  v.  Ketcltas,  36  N.  Y.  388,  392),  but  this  is  in 
some  cases  held  unnecessary.  Burt  v.  Saxto?!,  i  Hun,  551  ;  Brown  v. 
Everhard,  52  Wis.  205.  As  to  the  modification  of  a  contract  under  seal, 
see  Canal  Co.  v.  Ray,  loi  U.  S.  522  ;  Coe  v.  Hobby,  72  N.  Y.  141  ;  Quigley 
V.  De  Haas,  98  Pa.  St.  292. 

The  authorities  are  conflicting  as  to  whether  a  contract  within  the 
Statute  of  Frauds  can  be  varied  by  a  subsequent  parol  agreement.  Cinn- 
mings  V.  Arnold,  3  Met.  486  ;  Negley  v.  Jcffers,  28  O.  St.  90 ;  Hill  v. 
Blake,  97  N.  Y.  216  ;  Organ  v.  Stewart,  60  N.  Y.  413,  419  ;  Swaine  v. 
Seainens,  9  Wall  254,  272  ;  Packer  v.  Steward,  34  Vt.  127,  130  ;  see  Kribs 
V.  yones,  44  Md.  396  ;  Long  v.  Hartwell,  34  N.  J.  L.  116  ;  Reed  on  St. 
of  Frauds,  ii.  %  473.] 

'  Wigglesworth  v.  Dallison,  and  note  thereto,  S.  L.  C.  598-628  ;  [Gr. 
Ev.  i.  $§  294,  295  ;  Walls  v.  Bailey,  49  N.  Y.  464  ;  Barnard  v.  Kellogg, 
10  Wall.  383  ;  Page  v.  Cole,  120  Mass.  37  ;  Burger  v.  Farmers'  Ins.  Co. , 
71  Pa.  St.  422.] 

*  Illustration  (/)  ;  [T/iomas  v.  N'elson,  69  N.  Y.  118  ;  Lathrop  v.  Bratn- 
hall,  64  N.  Y.  365  ;  Perrine  v.  Cooley's  Excrs,  39  N.  J.  L.  449  ;  Irwin  v. 
Thompson,  27  Kan.  643.] 

5  Illustration  (7 )  ;  [  Widdifield  v.  Widdifield,  2  Binn.  245  ;  Cutler  v. 
Thomas,  25  Vt.  73 ;  see  Supples  v.  Lewis,  ^j  Ct.  568.  So  various  collat- 
eral facts  about  an  instrument  may  be  proved  by  parol ;  as,  e.g.,  the  pur- 
pose or  object  for  which  it  was  given  (Brick  v.  Brick,  98  U.  S.  514; 
Huichins  v.  Hebbard,  34  N.  Y.  24)  ;  the  reason  why  it  was  not  indorsed 


Chap.  XII.]      THE  LAW  OF  EVIDENCE.  165 

The  fact  that  a  person  holds  a  public  office  need  not  be 
proved  by  the  production  of  his  written  or  scaled  appointment 
thereto,  if  he  is  shown  to  have  acted  on  it.' 

Illustrations. 

{a)  A  policy  of  insurance  is  effected  on  goods  "  in  ships  from  Surinam 
to  London."     The  goods  are  shipped  in  a  particular  ship,  which  is  lost. 

The  fact  that  that  particular  ship  was  orally  excepted  from  the  policy 
cannot  be  proved.  ^ 

{d)  An  estate  called  Gotton  Farm  is  conveyed  by  a  deed  which  describes 
it  as  consisting  of  the  particulars  described  in  the  first  division  of  a  sched- 
ule and  delineated  in  a  plan  on  the  margin  of  the  schedule. 

Evidence  cannot  be  given  to  show  that  a  close  not  mentioned  in  the 
schedule  or  delineated  in  the  plan  was  always  treated  as  part  of  Gotton 
Farm,  and  was  intended  to  be  conveyed  by  the  deed. ' 

{c)  A  institutes  a  suit  against  B  for  the  specific  performance  of  a  con- 
tract, and  also  prays  that  the  contract  may  be  reformed  as  to  one  of  its 
provisions,  as  that  provision  was  inserted  in  it  by  mistake. 

A  may  prove  that  such  a  mistake  was  made  as  would  entitle  him  to 
have  the  contract  reformed.* 

{d)  A  lets  land  to  B,  and  they  agree  that  a  lease  shall  be  given  by  A 
to  B. 

Before  the  lease  is  given,  B  tells  A  that  he  will  not  sign  it  unless  A 
promises  to  destroy  the  rabbits.  A  does  promise.  The  lease  is  after- 
wards granted,  and  reserves  sporting  rights  to  A,  but  does  not  mention 


{Bank  V.  Kennedy,  17  Wall.  19)  ;  the  fact  that  interest  is  included  in  a 
promissory  note  ( Clifton  v.  Litchfield,  106  Mass.  34)  ;  and  many  like 
cases.  Excrs  of  Shoenber^er  v.  Hackman,  37  Pa.  St.  87  ;  Bower  v.  Hoff- 
man, 23  Md.  253  ;  Klein  v.  Russell,  19  Wall.  433.] 

'  See  authorities  collected  in  i  Ph.  Ev.  449-50 ;  T.  E.  s.  139  ;  [Gr.  Ev. 
i.  $ij  83,  92  ;  Com7n.  v.  Kane,  108  Mass.  423 ;  Colfon  v.  Beardsley,  38  Barl). 
29  ;  Lucier  v.  Pierce^  60  N.  H.  13  ;  Colder  v.  Dressier,  105  111.  419,  428  ; 
of.  Chapman  Township  v.  Herrold,  58  Pa.  St.  106.] 

^Weston  V.  Eames,  i  Tau.  115. 

5  Barton  v.  Dawes,  10  C.  B.  261-265. 

■•Story's  Equity  Jurisprudence,  chap,  v.,  ss.  153-162  ;  [Gr.  Ev.  i.  §  296 
a;  Hoioland  v.  Blake^  97  U.  S.  624  ;  Stockbridge  Co.  v.  Hudson  Co.,  102 
Mass.  45  ;  Bryce  v.  Lorillard  Ins.  Co.,  55  N.  Y.  240  \  N.  &^  W.  Branch 
R.  Co.  V.  Swank,  105  Pa.  St.  555  ;  but  equity  will  not  reform  a  will. 
Sherwood  \.  Sherwood,  45  Wis.  35.] 


1 66  A  DIGEST  OF  [Part  II. 


the  destruction  of  the  rabbits.  B  may  prove  A's  verbal  agreement  as  to 
the  rabbits.' 

(?)  A  &  B  agree  verbally  that  B  shall  take  up  an  acceptance  of  A's,  and 
that  thereupon  A  and  B  shall  make  a  written  agreement  for  the  sale  of 
certain  furniture  by  A  to  B.  B  does  not  take  up  the  acceptance.  A  may 
prove  the  verbal  agreement  that  he  should  do  so.^ 

(ec)  [A  makes  an  oral  assignment  to  B  for  a  valid  consideration  of  a 
portion  of  a  debt  due  to  A  by  a  bank,  and  at  the  same  time  gives  to  B  a 
check  to  enable  him  to  draw  the  amount  assigned.  The  check  is  not  the 
contract  between  the  parties  and  does  not  render  parol  evidence  of  the 
agreement  inadmissible.]  ^ 

(/)  A  &  B  enter  into  a  written  agreement  for  the  sale  of  an  interest  in 
a  patent,  and  at  the  same  time  agree  verbally  that  the  agreement  shall 
not  come  into  force  unless  C  approves  of  it.  C  does  not  approve.  The 
party  interested  may  show  this.'' 

(^)  A,  a  farmer,  agrees  in  writing  to  transfer  to  B,  another  farmer,  a 
farm  which  A  holds  of  C.  It  is  verbally  agreed  that  the  agreement  is  to 
be  conditional  on  C's  consent.  B  sues  A  for  not  transferring  the  farm. 
A  may  prove  the  condition  as  to  C's  consent  and  the  fact  that  he  does 
not  consent. 5 

{h)  A  agrees  in  writing  to  sell  B  14  lots  of  freehold  land  and  make  a 
good  title  to  each  of  them.  Afterwards  B  consents  to  take  one  lot  though 
the  title  is  bad.  Apart  from  the  Statute  of  Frauds  this  agreement  might 
be  proved.' 

(/)  A  sells  B  a  horse,  and  verbally  warrants  him  quiet  in  harness. 
A  also  gives  B  a  paper  in  these  words  :  "  Bought  of  A  a  horse  for  7/. 
zs.  6d." 

B  may  prove  the  verbal  warranty.' 


'  Morgan  v.  Griffiths,  L.  R.  6  Ex.  70  ;  and  see  Angell  v.  Duke^  L.  R. 
10  Q.  B.  T74  ;  [cf  Carr  v.  Dooley,  119  Mass.  296;  Lriuis  v.  Seabtiry,  74 
N.  Y.  409  ;  Chapin  v.  Dobson,  78  N.  Y.  74.  The  first  English  case  infra 
is  disapproved  in  Naumberg  v.    Young,  44  N.  J.  L.  331.] 

2  Lindley  v.  Lacey,  17  C.  B.  (N.  S.)  578. 

3  \Risley  v.  Phenix  Bank,  83  N.  Y.  318.] 

'^  Pym  V.  Campbell,  6  E.  &  B.  370;  [cf.  Fannce  v.  Life  Ins.  Co.,  loi 
Mass.  279  ;  Miller  v.  Gamble,  4  Barb.  146.] 

5  IVallis  V.  Littell,  11  C.  B.  (N.  S.)  369. 

8  Goss  V.  Lord  Nugent,  5  B.  &  Ad.  58,  65 ;  [see  Wiggin  v.  Goodrich,  63 
Me.  389.] 

'  Allen  v.  Pink,  4  M.  &  W.  140 ;  [Filkins  v.  Whyland,  24  N.  Y.  338 ; 
Dunham  v.  Barnes,  9  Allen,  352.] 


Chap.  XII.]       THE  LAW  OF  EVIDENCE.  167 


(j\  TTie  question  is,  whether  A  gained  a  settlement  by  occupying  and 
paying  rent  for  a  tenement.  The  facts  of  occupation  and  payment  of 
rent  may  be  proved  by  oral  evidence,  although  the  contract  is  in 
writing.' 

Article  91.* 

what  evidence  may  be  given  for  the  interpretation 
of  documents, 

(i)  Putting  a  construction  upon  a  document  means  ascer- 
taining the  meaning  of  the  signs  or  words  made  upon  it,  and 
their  relation  to  facts. 

(2)  In  order  to  ascertain  the  meaning  of  the  signs  and 
words  made  upon  a  document,  oral  evidence  may  be  given  of 
the  meaning  of  illegible  or  not  commonly  intelligible  charac- 
ters, of  foreign,  obsolete,  technical,  local,  and  provincial  ex- 
pressions, of  abbreviations,  and  of  common  words  which,  from 
the  context,  appear  to  have  been  used  in  a  peculiar  sense  ;  ' 
but  evidence  may  not  be  given  to  show  that  common  words, 
the  meaning  of  which  is  plain,  and  which  do  not  appear  from 
the  context  to  have  been  used  in  a  peculiar  sense,  were  in  fact 
so  used.' 

(3)  If  the  words  of  a  document  are  so  defective  or  ambigu- 
ous as  to  be  unmeaning,  no  evidence  can  be  given  to  show 
what  the  author  of  the  document  intended  to  say.'' 

(4)  In  order  to  ascertain  the  relation  of  the  words  of  a  docu- 
ment to  facts,  every  fact  may  be  proved  to  which  it  refers,  or 


*  See  Note  XXXIII. 

^  R.  V.  Hull,  7  B.  &  C.  611. 

'  [Illustrations  {a)  {b)  {c)  ;  [Gr.  Ev.  i.  $ij  280,  292  ;  Nelson  v.  Sun  Ins. 
Co.,  71  N.  Y.  453;  Loom  Co.  v.  Higgins,  105  U.  S.  580;  Houghton  v. 
Water  town  Ins.  Co.,  131  Mass.  300;  Mercer  Co.  v.  McKee's  Adm'r,  77 
Pa.  St.  170;  Hatch  v.  Douglas,  48  Ct.  116;  Walrath  v.  Whittekind,  26 
Kan.  482.] 

5  Illustration  (</)  ;  [Colletider  v.  Dinsmore,  55  N.  Y.  200;  Moran  v. 
Prather,  23  Wall.  492  ;   Odiorne  v.  Marine  Ins.  Co.,  loi  Mass.  551.] 

<  Illustrations  (^)  and  (/)  ;  [see  Heald  v.  Heald,  56  Md.  303  ;  Palmer 
V.  Albee,  50  la.  429.] 


1 68  A  DIGEST  OF  [Part  II. 


may  probably  have  been  intended  to  refer,'  or  which  identifies 
any  person  or  thing  mentioned  in  it.''  Such  facts  are  hereinaf- 
ter called  the  circumstances  of  the  case.' 

(5)  If  the  words  of  a  document  have  a  proper  legal  mean- 
ing, and  also  a  less  proper  meaning,  they  must  be  deemed  to 
have  their  proper  legal  meaning,  unless  such  a  construction 
would  be  unmeaning  in  reference  to  the  circumstances  of  the 
case,  in  which  case  they  may  be  interpreted  according  to  their 
less  proper  meaning.'' 

(6)  If  the  document  has  one  distinct  meaning  in  reference 
to  the  circumstances  of  the  case,  it  must  be  construed  accord- 
ingly, and  evidence  to  show  that  the  author  intended  to  express 
some  other  meaning  is  not  admissible.'* 

(7)  If  the  document  applies  in  part  but  not  with  accuracy  or 


'  See  all  the  illustrations. 

"  Illustration  (^)  ;  [Gr.  Ev.  i.  §$  286-290  ;  Coleman  v.  Manhattan  Co., 
94  N.  Y.  229;  Cleverly  v.  Cleverly,  124  Mass.  314;  Morris's  Appeal, 
88  Pa.  St.  368;  Chambers  v.  IVatso/i,  60  la.  339.  Evidence  of  "sur- 
rounding circumstances  "  is  received,  to  put  the  court  in  the  position  of 
the  parties  at  the  time  when  the  instrument  was  drawn.  Id.  ;  Bond's 
Appeal,  31  Ct.  183  ;  Fields.  Munson,  47  N.  Y.  221.  As  to  the  limitations 
of  the  doctrine,  see  Brawley  v.  U.  S.,  96  U.  S.  168  ;  Reed  v.  Ins.  Co.,  95 
U.  S.  23.  Such  evidence  is  not  received  when  the  meaning  of  the  in- 
strument is  clear  without  it.  Veazie  v.  Forsaith,  76  Me.  172  ;  Rapalye  v. 
Rapalye,  27  Barb.  610. 

That  proof  may  be  given  that  the  maker  of  the  instrument  habitually 
applied  a  nickname  or  peculiar  designation  used  therein  to  a  particular  per- 
son or  thing,  see  Boggs  v.  Taylor,  26  O.  St.  604  ;  Ryerss  v.  Wheeler,  22  Wend. 
150  ;  Lanning  v.  Francis,  35  N.  J.  Eq.  397  ;  see  Illustrations  (^)  and  {gg).'\ 

3  As  to  proving  facts  showing  the  knowledge  of  the  writer,  and  for  an 
instance  of  a  document  which  is  not  admissible  for  that  purpose,  see 
Adie  v.  Clark,  L.  R.  3  Ch.  D.  134,  142. 

••  Illustration  {h)  ;  [Mowatt  v.  Caroio,  7  Pai.  328  ;  Crower  v.  Pinckney, 
3  Barb.  Ch.  466  ;  cf.  DeKay  v.  Irving,  5  Den.  646.] 

^  Illustration  (/)  ;  \_American  Bible  Soc.  v.  Pratt,  9  Allen,  109  ;  Best  v. 
Hammond,  55  Pa.  St.  409  ;  Drew  v.  Swift,  46  N.  Y.  204  ;  yackson  v.  Sill, 
II  Johns.  201  ;  Cotton  v.  Smithwick,  66  Me.  360;  Sherwood  v.  Sherwood, 
45  Wis.  357  ;  Fitzpatrick  v.  Fitzpatrick,  36  la.  674 ;  Ktirtz  v.  Hibner,  55 


Chap.  XII.]      THE  LAW  OF  EVIDENCE.  169 


not  completely  to  the  circumstances  of  the  case,  the  Court 
may  draw  inferences  from  those  circumstances  as  to  the  mean- 
ing of  the  document,  whether  there  is  more  than  one,  or  only 
one  thing  or  person  to  whom  or  to  which  the  inaccurate  de- 
scription may  apply.  In  such  cases  no  evidence  can  be  given 
of  statements  made  by  the  author  of  the  document  as  to  his 
intentions  in  reference  to  the  matter  to  which  the  document 
relates,  though  evidence  may  be  given  as  to  his  circumstances, 
and  to  his  habitual  use  of  language  or  names  for  particular 
persons  or  things.' 

(8)  If  the  language  of  the  document,  though  plain  in  itself, 
applies  equally  well  to  more  objects  than  one,  evidence  may 
be  given  both  of  the  circumstances  of  the  case  and  of  state- 
ments made  by  any  party  to  the  document  as  to  his  intentions 
in  reference  to  the  matter  to  which  the  document  relates.' 


111.  514.  The  meaning  of  plain  language  in  a  will  must  be  followed, 
though  it  make  the  will  void.      Van  Nostrandv.  Moore,  52  N.  Y.  12.] 

'Illustrations  {k)  (/)  {m)  \  [Morse  v.  Stear?is,  131  Mass.  389;  A^.  V. 
Inst,  for  Blind  y;.  How's  Excrs,  10  N.  Y.  84  ;  St.  Luke's  Home  v.  Ass'n. 
for  Females,  52  N.  Y.  191  ;  Griscom  v.  Evens,  40  N.  J.  L.  402,  42  id.  579  ; 
Dunham  v.  Aver  ill,  45  Ct.  61  ;  Button  v.  Amer.  Tract  Soc.,  23  Vt.  336, 
In  illustration  of  the  rule  Falsa  demonstratio  non  nocet^  see  Gr.  Ev.  i.  §^ 
291,  301  ;  Bryce  v.  Lorillard  Ins.  Co.,  55  N.  Y.  240  ;  Parks  v.  Loomis,  6 
Gray,  467.  The  false  part  of  the  description  is  rejected  and  if  sufficient 
remains  to  identify  a  particular  person  or  thing,  effect  can  be  given  to 
the  instrument  ;  otherwise  it  is  void  for  uncertainty.  Id. ;  Fitzpatrick  v. 
Fitzpatrick,  36  la.  674.] 

*  Illustrations  («)  {o)  ;  [Gr.  Ev.  i.  §§  289,  290,  297,  298  ;  St.  Luke's  Home 
V.  Ass^n.for  Females,  $2.  N.  Y.  191,  198;  Trustees  v.  Colegrovc,  i,  Hun, 
362 ;  Griscom  v.  Evens,  supra  ;  Bodman  v.  Amer.  Tract.  Soc. ,  9  Allen, 
447  ;  Porter's  Appeal,  94  Pa.  St.  332  ;  Morgan  v.  Burrows,  45  Wis.  211. 
These  are  called  cases  of  "  latent  ambiguity,"  or  better  of  "  equivoca- 
tion." See  Gr.  Ev.  i.  §  289;  Tucker  v.  Seamen's  Aid  Soc,  7  Met.  188, 
206.  But  many  cases  of  this  kind  are  resolved  upon  proof  of  "  surround- 
ing circumstances,"  without  proof  of  or.T.1  statements  of  intention.  Put- 
nam v.  Bond.,  100  Mass.  58  ;  .4yers  v.  Weed,  16  Ct.  291  ;  Til/on  v.  Amer. 
Bible  Soc,  60  N.  H.  377  ;  Tyler  v.  Fickett,  73  Me.  410  ;  Sargent s.  Adams, 
3  Gray,  72.] 


I70  A  DIGEST  OF  [Part  II. 

(9)  If  the  document  is  of  such  a  nature  that  the  Court  will 
presume  that  it  was  executed  with  any  other  than  its  apparent 
intention,  evidence  may  be  given  to  show  that  it  was  in  fact 
executed  with  its  apparent  intention.' 

Illustrations. 

(a)  A  lease  contains  a  covenant  as  to  "  ten  thousand  "  rabbits.  Oral 
evidence  to  show  that  a  thousand  meant,  in  relation  to  rabbits,  1200,  is 
admissible.' 

(/')  A  sells  to  B  "  1 170  bales  of  gambier."  Oral  evidence  is  admissi- 
ble to  show  that  a  "bale"  of  gambier  is  a  package  compressed  and 
weighing  2  cwt.^ 

\c)  A,  a  sculptor,  leaves  to  B  "  all  the  marble  in  the  yard,  the  tools  in 
the  shop,  bankers,  mod  tools  for  carving."  Evidence  to  show  whether 
"  mod  "  meant  models,  moulds,  or  modelling-tools,  and  to  show  what 
bankers  are,  may  be  given.'' 

((/)  Evidence  may  not  be  given  to  show  that  the  word  "boats,"  in  a 
policy  of  insurance,  means  "boats  not  slung  on  the  outside  of  the  ship 
on  the  quarter."  * 

{e)  A  leaves  an  estate  to  K,  L,  M,  etc.,  by  a  will  dated  before  1838. 
Eight  years  afterward  A  declares  that  by  these  letters  he  meant  particu- 
lar persons.     Evidence  of  this  declaration  is  not  admissible.     Proof  that 


'  Illustration  (/).  [This  is  called  evidence  "to  rebut  an  equity  "  [i.e., 
an  equitable  presumption),  and  oral  statements  of  intention  are  provable. 
Gr.  Ev.  i.  $  296  ;  Van  Houten  v.  Post,  33  N.  J.  Eq.  344  ;  Reynolds  v.  Rob- 
inson, 82  N.  Y.  103,  107 ;  Bank  v.  Fordyce,  9  Pa.  St.  275 ;  cf.  Phillips  v. 
Mc  Combs,  53  N.  Y.  494.] 

2  Smith  v.  Wilson,  3  B.  &  Ad.  728  ;  [see  Soulier  v.  Kellerman,  18  Mo. 
509  ;  Brown  v.  Brown,  8  Met.  576.  But  except  in  special  Cases  like  these, 
the  meaning  of  ordinary  words  cannot  be  varied.  Butler  v.  Gale,  27  Vt. 
739;  Mann  v.  Mann.,  14  Johns,  i.] 

3  Gorrissen  \.Perrin,  2  C.  B.  (N.  S.)  681  ;  [see  Miller  v.  Stevens,  ico 
Mass.  518  (meaning  of  "  barrels  ")  ;  Confederate  Note  Case,  19  Wall.  548 
(of  "  dollars  "  )  ;  Carey  v.  Bright,  58  Pa.  St.  70  (of  "  collieries  "  )  ;  Dana 
v.  Fiedler,  12  N.  Y.  40.] 

■•  {^Goblet  V.  Beechy,  3  Sim.  24  ;  reversed  on  another  ground  in  2  R.  & 
M.  624.  This  last  decision  is  severely  criticised  in  Wigram  on  Wills,  140, 
187  (O'Hara's  ed.)  ;  see  Rycrss  v.  Wheeler,  22  Wend.  148,  153.] 

'  Blackett  v.  Royal  Exchange  Co.,  2  C.  &  J.  24^}. 


Chap.  XII.]       THE  LAW  OF  EVIDENCE.  171 

A  was  in  the  habit  of  calling  a  particular  person  M  would  have  been  ad- 
missible.' 

(/)  A  leaves  a  legacy  to .     Evidence  to  show  how  the  blank  was 

intended  to  be  filled  is  not  admissible. ^ 

(^)  Property  was  conveyed  in  trust  in  1704  for  the  support  of"  Godly 
preachers  of  Christ's  holy  Gospel."  Evidence  may  be  given  to  show 
what  class  of  ministers  were  at  the  time  known  by  that  name.^ 

^^S^  [•■^  leaves  a  legacy  in  his  will  to  "  The  Home  of  the  Friendless  in 
New  York."  There  is  no  institution  of  that  name,  but  the  legacy  is 
claimed  by  the  "  American  Female  Guardian  Society."  Evidence  may 
be  given  that  this  society  has  been  commonly  designated  by  the  name 
used  in  the  will,  both  by  its  officers  and  friends  and  by  the  testator,  and 
that  upon  its  circulars  and  business  signs  a  name  almost  identical  has 
been  used.]  ^ 

(//)  A  leaves  property  to  his  "  children."  If  he  has  both  legitimate  and 
illegitimate  children,  the  whole  of  the  property  will  go  to  the  legitimate 
children.  If  he  has  only  illegitimate  children,  the  property  may  go  to 
them,  if  he  cannot  have  intended  to  give  it  to  unborn  legitimate  chil- 
dren.* 

(?)  A  testator  leaves  all  his  estates  in  the  county  of  Limerick  and  city 
of  Limerick  to  A.  He  had  no  estates  in  the  coimty  of  Limerick,  but  he 
had  estates  in  the  county  of  Clare,  of  which  the  will  did  not  dispose. 
Evidence  cannot  be  given  to  show  that  the  words  "of  Clare  "  had  been 
erased  from  the  draft  by  mistake,  and  so  omitted  from  the  will  as  exe- 
cuted.•" 

(y)  A  leaves  a  legacy  to  "  Mrs.  and  Miss  Bowden."  No  such  persons 
were  living  at  the  time  when  the  legacy  was  made,  but  Mrs.  Washburne, 
whose  maiden  name  had  been  Bowden,  was  living,  and  had  a  daughter. 


'  Clayton  v.  Lord  Niigcnt,  13  M.  &  W.  200 ;  see  205-6. 

"^  Bay  Us  v.  A.  G.,  2  Atk.  239;  [see  Crooks  v.  Whitford,  47  Mich.  283; 
IVaUize  v.  Wallize,  55  Pa.  St.  242  ;  Lefevre  v.  Lefevre,  59  N.  Y.  434, 
441  ;  cf.  Crocker  v.  Crocker,  5  Hun,  587.] 

3  Shore  v.  Wilson,  9  C.  &  F.  365,  565-6;  [see  Robertson  v.  Bullions,  11 
N.  Y.  243,  259  ;   Goddard\.  Foster,  17  Wall.  143.] 

••  [Le/evre  v.  Lefevre,  59  N.  Y.  434  ;  see  Sutton  v.  Bowkcr,  5''Gray,  416.J 

'  Wig.  Ext.  Ev. ,  pp.  18  and  19,  and  note  of  cases.  \Appel  v.  Bycrs,  98 
Pa.  St.  479  ;  Brozver  v.  Bowers,  i  Abb.  Dec.  214  ;  see  Gclston  v.  Shields, 
16  Hun,  154,  78  N.  Y.  275.] 

^Miller  V.  Travcrs,  8  Bing.  244  ;  [see  Tucker  V.  Seamen's  Aid Soc,  7 
>Iet.  188  ;  Dunhaniy.  Averill,  45  Ct.  61.] 


172  A  DIGEST  OF  [Part  II. 

and  the  testatrix  used  to  call  them  Bowden.  Evidence  of  these  facts 
was  admitted.' 

{k)  A  devises  land  to  John  Hiscocks,  the  eldest  son  of  John  Hiscocks, 
John  Hiscocks  had  two  sons,  Simon,  his  eldest,  and  John,  his  second 
son,  who,  however,  was  the  eldest  son  by  a  second  marriage.  The  cir- 
cumstances of  the  family,  but  not  the  testator's  declarations  of-Jntention, 
may  be  proved  in  order  to  show  which  of  the  two  was  intended.* 

(/)  A  devises  property  to  Elizabeth,  the  natural  daughter  of  B.  B  has 
a  natural  son  John,  and  a  legitimate  daughter  Elizabeth.  The  Court 
may  infer  from  the  circumstances  under  which  the  natural  child  was 
born,  and  from  the  testator's  relationship  to  the  putative  father,  that  he 
meant  to  provide  for  John.' 

[m]  A  leaves  a  legacy  to  his  niece,  Elizabeth  Stringer.  At  the  date  of 
the  will  he  had  no  such  niece,  but  he  had  a  great-great-niece  named  Eliz- 
abeth Jane  Stringer.  The  Court  may  infer  from  these  circumstances 
that  Elizabeth  Jane  Stringer  was  intended  ;  but  they  may  not  refer  to  in- 
structions given  by  the  testator  to  his  solicitor,  showing  that  the  legacy 
was  meant  for  a  niece,  Elizabeth  Stringer,  who  had  died  before  the  date 
of  the  will,  and  that  it  was  put  into  the  will  by  a  mistake  on  the  part  of 
the  solicitor.* 

(;/)  A  devises  one  house  to  George  Gord,  the  son  of  George  Gord,  an- 
other to  George  Gord,  the  son  of  John  Gord,  and  the  third  to  George 
Gord,  the  son  of  Gord.  Evidence  both  of  circumstances  and  of  the  tes- 
tator's statements  of  intention  may  be  given  to  show  which  of  the  two 
George  Gords  he  meant. ^ 

(o)  A  appointed  "  Percival ,  of  Brighton,  Esquire,  the  father,"  one 

of  his  executors.  Evidence  of  surrounding  circumstances  may  be  given 
to  show  who  was  meant,  and  (probably)  evidence  of  statements  of  inten- 
tion.« 

(p)  A  leaves  two  legacies  of  the  same  amount  to  B,  assigning  the 
same  motive  for  each  legacy,  one  being  given  in  his  will,  the  other  in  a 
codicil.     The  Court  presumes  that  they  are  not  meant  to  be  cumulative. 


'  Lee  V.  Pain,  4  Hare,  251-3  ;   [Gr.  Ev.  i.  $  291.] 

2  Doe  V.  Hiscocks,  5  M.  &  W.  363  ;  [see  Smith  v.  Smith,  I  Edw.  Ch. 
189,  4  Pai.  271  ;  Connolly  v.  Pardon,  i  Pai.  291  ;  Thayer  v.  Boston,  15 
pray,  347.] 

3  Ryall  v.  Hannam,  10  Beav.  536. 

*  Stringer  v.  Gardiner,  27  Beav.  35  ;  4  De  G.  &  J.  468  ;  [cf.  Galluf  v, 
Wright,  61  How.  Pr.  286.] 

*  Doe  V.  Needs,  2  M.  &  W.  129. 

*  In  the  goods  of  de  Rosaz^  L.  R.  2  P.  D,  6§, 


Chap.  XI I.J      THE  LAW  OF  EVIDENCE.  173 


but  the  legatee  may  show,  either  by  proof  of  surrounding  circumstances, 

or  of  declarations  by  the  testator,  that  they  were.' 


Article  92.* 

cases  to  which  articles  90  and  9 1  do  not  apply. 

Articles  90  and  91  apply  only  to  parties  to  documents,  and 
their  representatives  in  interest,  and  only  to  cases  in  which 
some  civil  right  or  civil  liability  dependent  upon  the  terms  of 
a  document  is  in  question.  Any  person  other  than  a  party  to 
a  document  or  his  representative  in  interest  may,  notwithstand- 
ing the  existence  of  any  document,  prove  any  fact  which  he  is 
otherwise  entitled  to  prove  ;  and  any  party  to  any  document 
or  any  representative  in  interest  of  any  such  party  may  prove 
any  such  fact  for  any  purpose  other  than  that  of  varying  or 
altering  any  right  or  liability  depending  upon  the  terms  of  the 
document.* 

Illustrations. 

(<?)  The  question  is,  whether  A,  a  pauper,  is  settled  in  the  parish  of 
Cheadle.  A  deed  of  conveyance  to  which  A  was  a  party  is  produced, 
purporting  to  convey  land  to  A  for  a  valuable  consideration.  The  parish 
appealing  against  the  order  was  allowed  to  call  A  as  a  witness  to  prove 
that  no  consideration  passed.  ^ 

(b)  The  question  is,  whether  A  obtained  money  from  B  under  false  pre- 


*  See  Note  XXXIV. 

'  Per  Leach,  V.  C,  in  Hurst  v.  Leach,  5  Madd.  351,  360-1.  The  rule 
in  this  case  was  vindicated,  and  a  number  of  other  cases  both  before  and 
after  it  were  elaborately  considered  by  Lord  St.  Leonards,  when  Chan- 
cellor of  Ireland,  in  Halls.  Hall,  i  Dru.  &  War.  94,  111-133.  See,  too, 
yenner  v.  Hinch,  L.  R.  5  P.  D.  106. 

2[Gr.  Ev.  i.  $  279;  Lowell  Mfg.  Co.  v.  Safeguard  Ins.  Co.,  88  N.  Y. 
591  ;  Stitt  V.  Huidekopers,  17  Wall.  384  ;  Brown  v.  Cambridge,  3  Allen, 
474  ;  Wilson  v.  Sullivan,  58  N.  H.  260  ;  Burnham  v.  Dorr,  72  Me.  198  ; 
Needles  v.  Ham/an,  11  Bradw.  303  ;  Burns  v.   Tho7npson,  91  Ind.  146.] 

3  R.  V.  Cheadle,  3  B.  &  Ad.  833. 


174  A  DIGEST  OF  [Part  II. 

tences.  The  money  was  obtained  as  a  premium  for  executing  a  deed  of 
partnership,  which  deed  stated  a  consideration  other  than  the  one  which 
constituted  the  false  pretence.  B  may  give  evidence  of  the  false  pre- 
tence, although  he  executed  the  deed  mis-stating  the  consideration  for  the 
premium.^ 

'  R.  V.  Adamson,  2  Moody,  286. 


Chap,  XIII.J     THE  LAW  OF  EVIDENCE,  175 


PART   III. 

PRODUCTION   AND   EFFECT   OF 
EVIDENCE. 

CHAPTER   XIII.* 
BURDEN  OF  PROOF. 

Article  93.! 

he  who  affirms  must  prove. 

Whoever  desires  any  Court  to  give  judgment  as  to  any  legal 
right  or  liability  dependent  on  the  existence  or  non-existence 
of  facts  which  he  asserts  or  denies  to  exist,  must  prove  that 
those  facts  do  or  do  not  exist.' 

Article  94.! 

presumption  of  innocence. 

If  the  commission  of  a  crime  is  directly  in  issue  in  any  pro- 
ceeding, criminal  or  civil,  it  must  be  proved  beyond  reasonable 
doubt." 


*  See  Note  XXXV.  t  See  Note  XXXVI. 

•  I  Ph.  Ev.  552  ;  T.  E.  (from  Greenleaf),  s.  337  ;  Best,  ss.  265-6  ;  Starkie, 
585-6;  [Gr.  Ev.  i.  $  74;  Wh.  Ev.  i.  $§  353-357-] 

"  [In  respect  to  trials  for  crime  this  rule  is  well-settled  (Miles  v.  U.  S., 
103  U.  S.  304  ;  O'  Coitnell  v.  People,  87  N.  Y.  377  ;  A'evlin£  v.  Comm.,  98 
Pa.  St.  322;  see  "  reasonable  doubt"  defined  in  People  v.  Finley,  38 
Mich.  482  ;  State  v.  Gann,  72  Mo.  374  ;  U.  S.  v.  Wright,  16  F.  R.  112)  ; 
but  it  is  a  general  rule  in  civil  cases  that  only  a  preponderance  of  evi- 


176  A  DIGEST  OF  [Part  III. 

The  burden  of  proving  that  any  person  has  been  guihy  of  a 
crime  or  wrongful  act  is  on  the  person  who  asserts  it,  whether 
the  commission  of  such  act  is  or  is  not  directly  in  issue  in  the 
action.' 

Illustrations. 

(a)  A  sues  B  on  a  policy  of  fire  insurance.  B  pleads  that  A  burnt 
down  the  house  insured.  B  must  prove  his  plea  as  fully  as  if  A  were 
being  prosecuted  for  arson. ^ 

[b)  A  sues  B  for   damage   done    to  A's   ship  by  inflammable   matter 


dence  is  required  to  sustain  a  verdict.  SeyioUv.JV.  Y.,  etc.  R.  Co.,g^ 
N.  Y.  562  ;  Robinson  v.  Randall,  82  111.  521. 

There  is  much  conflict  of  opinion  in  this  country  as  to  which  of  these 
rules  applies  in  civil  cases,  where  the  commission  of  a  crime  is  in  issue. 
Thus  in  actions  for  libel  or  slander,  where  the  defendant  justifies  a  charge 
of  crime,  proof  beyond  a  reasonable  doubt  is  required  in  Corbley  v.  Wilson, 
71  111.  209  ;  Merk  v.  Gelzhaeuser,  50  Cal.  631  ;  Tucker  v.  Call,  45  Ind.  31 ; 
Polston  V.  See,  54  Mo.  291  ;  Williams  v.  Gunnels,  66  Ga.  521  ;  cf.  jfohnson 
V.  A^'r.  Ins.  Co. ,  25  Hun,  253  ;  but  only  a  preponderance  of  evidence  in 
Bell  V.  Mc Guinness,  40  O.  St.  204  ;  Ellis  v.  Buzzell,  60  Me.  209  ;  Folsom  v. 
Brawn,  25  N.  H.  114  ;  Peoples  v.  Evening  News,  51  Mich.  11.  In  insur- 
ance cases,  similar  to  Illustration  {a),  the  great  weight  of  authority  is 
against  the  English  rule,  and  requires  only  a  preponderance  of  evidence. 
Blaeser  v.  Milwaukee  Ins.  Co.,  37  Wis.  31  ;  Katie  v.  Hibernia  Ins.  Co.,  39 
N.  J.  L.  697  ;  Rothschild  w.  Amer.  Ins.  Co.,  62  Mo.  356  ;  Behrcns  v.  Ger- 
mania  Ins.  Co.,  58  la.  26 ;  Johtison  v.  A.g'r.  Ins.  Co.,  25  Hun,  251,  and  see 
95  N.  Y.  569  ;  Schmidt  V.  TV.  Y.,  etc.  Ins.  Co.,  I  Gray,  529,  see  15  Gray, 
413;  Farmers'  Ins.  Co.  v.  Garrett,  42  Mich.  289,  292;  see  Hills  v.  Good- 
year, 4  Lea,  233.  And  in  many  other  civil  cases  involving  a  charge  of 
crime,  the  rule  of  preponderance  has  been  applied.  Roberge  v.  Burn- 
ham,  124  Mass.  277  ;  Kendigw.  Overhulscr,  58  la.  19S  ;  Aloresonx.  North- 
western Ins.  Co.,  29  Minn.  107  ;  Weston  v.  Gravlin,  49  Vt.  507  ;  jfones  v. 
Greaves,  26  O.  St.  2  ;  Munson  v.  Atwood,  30  Ct.  102  ;  Bullard  v.  Credi- 
tors, 56  Cal.  6co  ;  for  a  valuable  article  as  to  the  burden  of  proof  in  crim- 
inal cases,  see  17  Am.  Law  Rev.  892.1 

1  [Gr.  Ev.  i.  ^^  35,  78-80  ;  Whitney  Arms  Co.  v.  Barlow,  63  N.  Y.  34  ; 
Davis  V.  Davis,  123  Mass.  590  ;  Baker  v.  Fehr,  97  Pa.  St.  70.] 

»  Thtirtell  v.  Beaumont,  1  Bing.  339  ;  [generally  denied  in  this  coun- 
try ;  see  note  2,  supra,  and  10  Am.  Law  Rev.  642,  17  Am.  Law  Reg.  N. 
S.  302.] 


Chap.  XIII.]    THE  LAW  OF^  EVIDENCE.  177 


loaded  thereon  by  B  without  notice  to  A's  captain.     A  must  prove  tlie 
absence  of  notice.' 

(c)  The  question  in  1819  is,  whether  A  is  settled  in  the  parish  of  a  man 
to  whom  she  was  married  in  1813.  It  is  proved  that  in  1812  she  was  mar- 
ried to  another  person,  who  enlisted  soon  afterwards,  went  abroad  on 
service,  and  had  not  been  heard  of  afterwards.  The  burden  of  proving 
that  the  first  husband  was  alive  at  the  time  of  the  second  marriage  is  on 
the  person  who  asserts  it.'' 


Article  95. 

on  whom  the  general  burden  of  proof  lies. 

The  burden  of  proof  in  any  proceeding  lies  at  first  on  tliat 
party  against  whom  the  judgment  of  the  Court  would  be  given 
if  no  evidence  at  all  were  produced  on  either  side,  regard  be- 
ing had  to  any  presumption  which  may  appear  upon  the  plead- 
ings. As  the  proceeding  goes  on,  the  burden  of  proof  may  be 
shifted  from  the  party  on  whom  it  rested  at  first  by  his  proving 
facts  which  raise  a  presumption  in  his  favor.  ^ 


'  Williams  v.  East  India  Co.,  3  Ea.  102,  198-9;  [cf.  B.  &=  A.  J?.  Co.  v. 
Shanly,  107  Mass.  568.] 

»  A"  v.  Twyning,  2  B.  &  A.  386.  [It  is  said  that  the  law,  in  cases  like 
this,  in  a  general  way  prefers  the  presumption  of  innocence  to  that  of  the 
continuance  of  life.  Bishop,  M.  &  D.  i.  §  453,  6th  ed. ;  Gr.  Ev.  i.  §  35  ; 
In  re  Nesbit,  N.  Y.  Daily  Reg. ,  Mar.  12,  1885  ;  see  Harris  v.  Harris,  8 
Bradw.  57  ;  Squire  v.  State,  46  Ind.  459,  see  86  Ind.  75  ;  Murray  v.  Mur- 
ray, 6  Or.  17  ;  People  v.  Feilcn,  58  Cal.  218 ;  In  re  Edwards,  58  la.  431  ; 
Dixon  v.  People,  18  Mich.  84  ;  Kelly  v.  Drew,  12  Allen,  107  ;  cf  R.  v. 
Wills/lire,  6  Q.  B.  D.  366  ;  Hyde  Park  v.  Canton,  130  Mass.  505.] 

3  I  Ph.  Ev.  552  ;  T.  E.  ss.  338-9  ;  Starkie,  586-7  &  748  ;  Best,  s.  268. 
[Gr.  Ev.  i.  $§  74-82  ;  Veiths  v.  Haggc,  8  la.  163  ;  Wilder  v.  Cowles,  100 
Mass.  487,  490  ;  Baker  v.  Fekr,  97  Pa.  St.  70  ;  Heinernann  v.  Heard,  62 
N.  Y.  448.  Usually  the  plaintiff  has  the  burden,  for  he  must  establish 
his  cause  of  action  when  it  is  denied  ;  and  this  is  true,  though  it  may  re- 
quire proof  of  negative  propositions.  Roberts  v.  Chittenden,  88  N.  Y. 
33;  Abbath  v.  Railway  Co.,  11  Q.  B.  D.  440.  But  when  the  defendant 
admits  all  the  allegations  of  the  complaint  or  declaration  which  require 
to  be  proved,  and  sets  up  an  affirmative  defence,  he  has  the  burden  and 


178  A  DIGEST  OF  [Part  III. 


Illustrations. 

(a)  It  appears  upon  the  pleadings  that  A  is  indorsee  of  a  bill  of  ex- 
change. The  presumption  is  that  the  indorsement  was  for  value,  and 
the  party  interested  in  denying  this  must  prove  it.' 

{b)  A,  a  married  woman,  is  accused  of  theft  and  pleads  not  guilty. 

The  burden  of  proof  is  on  the  prosecution.  She  is  shown  to  have  been 
in  possession  of  the  stolen  goods  soon  after  the  theft.  The  burden  of 
proof  is  shifted  to  A.  She  shows  that  she  stole  them  in  the  presence  of 
her  husband.  The  burden  of  proving  that  she  was  not  coerced  by  him 
is  shifted  on  to  the  prosecutor.* 


the  right  to  open  and  close  the  case.  Murray  v.  N.  V.  Life  hts.  Co. ,  85 
N.  Y.  236. 

The  general  burden  of  proof  upon  the  main  issue  does  not  really  shift 
from  the  party  upon  whom  it  rests  at  the  beginning,  but  remains  upon 
him  throughout  the  trial  (Gr.  Ev.  i.  74,  n.;  Clajlin  v.  Meyer,  75  N.  Y. 
260,  264  ;  Heinemamt  v.  Heard,  supra  ;  Central  Bridge  Corp.  v.  Butler, 
2  Gray,  132  ;  thus  in  criminal  cases  it  remains  on  the  government  through- 
out the  trial,  Turner  v.  Comm.,  86  Pa.  St.  54  ;  State  v.  IVingo,  66  Mo. 
181;  Comm.  V.  Kimball,  24  Pick.  366;  State  v.  Patterson,  45  Vt.  308; 
O' Connell  v.  People,  87  N.  Y.  t,-]-]).  But  after  he  has  given  evidence, 
which,  in  the  absence  of  further  proof,  would  be  sufficient  to  entitle  him 
to  recover,  the  other  party  may  then  give  evidence  in  rebuttal  or  defence, 
whereupon  the  former  may  need  to  furnish  additional  evidence  to  com- 
plete the  requisite  proof  of  his  allegations.  And  this  successive  adduc- 
ing by  each  party  of  evidence  in  support  of  his  side  of  the  case  is  what  is 
often  called  the  "  shifting  of  the  burden."  Lamb  v.  Camden,  etc.  R.  Co., 
46  N.  Y.  271  ;  Ogletree  v.  State,  28  Ala.  693.  Sometimes  the  party  hold- 
ing the  affirmative  upon  the  issue  can  establish  a  sufficient  prima  facie 
case  by  showing  the  mere  occurrence  of  acts  which  raise  a  presumption 
in  his  favor.  Mullen  v.  St.  John,  57  N.  Y.  567;  Phila.,  etc.  R.  Co.  v. 
Anderson,  94  Pa.  St.  351  ;  Burnham  v.  Allen,  i  Gray,  496.  But  ordina- 
rily he  must  give  sufficient  evidence  to  prove  all  the  material  allegations 
of  his  case,  regard  being  had  to  the  different  degrees  of  proof  required 
in  civil  and  criminal  cases.  Marshall  v.  Davies,  78  N.  Y.  414  ;  Fed.  St. 
etc.  R.  Co.  V.  Gibson,  96  Pa.  St.  83;  Comm.  v.  McKie,  i  Gray,  61.] 

>  Mills  V.  Barber,  I  M.  &  W.  425  ;  [Harder  v.  Worrall,  69  N.  Y.  370  ; 
Courney  v.  Macfarlane,  97  Pa.  St.  361  ;  Estabrook  v.  Boyle,  I  Allen,  412  ; 
cf.  Smith  V.  Sac  Co.,  11  Wall.  139.] 

"  I  Russ.  Cri.  33  ;  and  2,  337.  [Some  American  cases  hold  that  the 
recent  possession  of  stolen  goods  raises  a  le,^al  presumption  of  guilt. 


Chap.  XIII.]     THE  LAW  OF  EVIDENCE.  179 


(c)  A  is  indicted  for  bigamy.  On  proof  by  the  prosecution  of  the  first 
marriage,  .^  proves  that  at  the  time  he  was  a  minor.  This  throws  on  the 
prosecution  the  burden  of  proving  the  consent  of  A's  parents.' 

(cc)  [A  sues  B  for  malicious  prosecution  and  B  pleads  a  denial.  A 
must  prove  malice,  and  the  want  of  probable  cause,  though  the  latter  is 
a  negative.]  ^ 

(cd)  [A  is  indicted  for  a  crime  and  pleads  not  guilty.  The  burden  is 
iipon  the  prosecution  to  prove  that  he  committed  the  act  charged.  He 
then  gives  evidence  to  show  that  he  was  insane  when  the  act  was  com- 
mitted. The  prosecution  may  then  give  evidence  to  prove  that  he  was 
sane,  and  if  the  entire  evidence  does  not  satisfy  the  jury  of  his  sanity  be- 
yond a  reasonable  doubt,  A  must  be  acquitted.]  ' 

(d)  A  deed  of  gift  is  shown  to  have  been  made  by  a  client  to  his  solici- 
tor. The  burden  of  proving  that  the  transaction  was  in  good  faith  is  on 
the  solicitor.* 


Sfafe  V.  Ar/Zy,  73  ^^o-  608  ;  Wafers  v.  People,  104  111.  544.  Others  hold 
■that  it  only  raises  a  presumption  oi  fact,  and  is  therefore  only  evidence 
of  guilt  for  the  jury  and  does  not  shift  the  burden.  State  v.  Hodge,  50 
N.  H.  510;  Stover  v.  People,  56  N.  Y.  315;  Comm.  v.  McGorty,  114 
Mass.  299  ;  Ingalh  v.  State,  48  Wis.  647  ;  see  State  v.  Shaffer,  49  la.  290  ,• 
People  V.  Swiiiford,  57  Cal.  86  ;  Wh.  Cr.  Ev.  ^  758  (gth  ed.).] 

'  R.  V.  Butler,  i  R.  &  R.  61. 

2  [Marks  v.   Townsend,  97  N.  Y.  590;   Goodw  French,  115  Mass.  201.] 

^{^IValker  v.  People,  88  N.  Y.  81;  State  v.  Bartlctt,  43  N.  H.  224; 
Chase  v.  People,  40  111.  352  ;  Gitetigy.  State,  66  Ind.  94.  But  in  most  of 
the  States  it  is  the  rule  that  the  defendant,  to  be  acquitted,  must  prove 
his  insanity  by  a  preponderance  of  evidence.  Coyle  v.  Comm. ,  100  Pa. 
St.  573 ;  Comm.  v.  Eddy,  7  Gray,  583  ;  Graves  v.  State,  45  N.  J.  L.  203 
and  347  ;  State  v.  Redemeier,  71  Mo.  173  ;  State  v.  Heinrich,  62  la.  414  ; 
People  V.  Wilson,  49  Cal.  13  ;  Bond  v.  State,  23  O.  St.  349  ;  Baccigaliipo 
V.  Comm.,  33  Gratt.  807  ;  Boswell  v.  State,  63  Ala.  307. 

As  to  the  defence  of  alibi,  there  is  a  like  difference  of  opinion  ;  that 
reasonable  doubt  is  sufficient  for  acquittal,  see  Walters  v.  State,  39  O. 
St.  215  ;  Comm.  v.  Choate,  105  Mass.  451  ;  Harvard  v.  State,  50  Ind.  190  ; 
cf.  Watson  v.  Comm.,  95  Pa.  St.  418  ;  that  preponderating  evidence  is  re- 
quired, see  State  v.  Hamilton,  57  la.  596  ;  cf  Garrity  v.  People,  107  111. 
162.] 

<  I  Story,  Eq.  Juris.,  s.  310,  n.  i.  Quoting  Hunter  \.  Atkins,  3  M.  & 
K.  113.  [Whiteheads.  Kennedy,  69  N.  Y.  462;  Dunn  v.  Record,  63  Me. 
17  ;  Dale  v.  Dale,  38  N.  J.  Eq.  274  ;  Cuthbertson's  Appeal,  97  Pa.  St. 
163] 


i8o  A  DIGEST  OF  [Part  III. 


{e)  It  is  shown  that  a  hedge  stands  on  A's  land.  The  burden  of  prov- 
ing that  the  ditch  adjacent  to  it  is  not  A's  also  is  on  the  person  who  de- 
nies that  the  ditch  belongs  to  A.' 

(/)  A  proves  that  he  received  the  rent  of  land.  The  presumption  is 
that  he  is  owner  in  fee  simple,  and  the  burden  of  proof  is  on  the  person 
who  denies  it.' 

(^)  A  finds  a  jewel  mounted  in  a  socket,  and  gives  it  to  B  to  look  at. 
B  keeps  it,  and  refuses  to  produce  it  on  notice,  but  returns  the  socket. 
The  burden  of  proving  that  it  is  not  as  valuable  a  stone  of  the  kind  as 
would  go  in  the  socket  is  on  B.^ 

(h)  A  sues  B  on  a  policy  of  insurance,  and  shows  that  the  vessel  insured 
went  to  sea,  and  that  after  a  reasonable  time  no  tidings  of  her  have  been 
received,  but  that  her  loss  has  been  rumored.  The  burden  of  proving 
that  she  has  not  foundered  is  on  B.^ 

Article  96. 
burden  of  proof  as  to  particular  fact. 

The  burden  of  proof  as  to  any  particular  fact  lies  on  that 
person  who  wishes  the  Court  to  believe  in  its  existence,  unless 
it  is  provided  by  any  law  that  the  burden  of  proving  that  fact 
shall  lie  on  any  particular  person  ;  *  but  the  burden  may  in  the 
course  of  a  case  be  shifted  from  one  side  to  the  other,  and  in 
considering  the  amount  of  evidence  necessary  to  shift  the  bur- 
den of  proof,  the  Court  has  regard  to  the  opportunities  of 
knowledge  with  respect  to  the  fact  to  be  proved  which  may  be 
possessed  by  the  parties  respectively.* 


'  Guy  V.   West,  Selw.  N.  P.  1297. 

»  Doe  v.  Coulthred,  7  A.  &  E.  235  ;  \^Burt  v.  Panjaud,  99  U.  S.  180  ;  cf. 
VVhiton  V.  Snyder,  88  N.  Y.  299  ;  Linthicum  v.  Ray,  9  Wall.  24.] 

3  Armoury  v.  Delajnirie,  I  S.  L.  C.  357  ;  [Gr.  Ev.  i.  %  'iT  \  Clark  v. 
Miller,  4  Wend.  628.] 

^  Koster  v.  Reed,  6  B.  «S:  C.  19  ;  [see  Gordon  v.  Bowne,  2  Johns.  150.] 

'  For  instances  of  such  provisions  see   T.    E.    ss.   345-6 ;   [Haskms  v. 

IVarren,  115  Mass.  515  ;  thus  the  defendant  must  prove  the  grounds  of 

defence  which  he  sets  up,  as  usury,  fraud,  etc.     Haiighwout  v.  Garrison, 

69  N.  Y.  339;  Dodd  V.  Gloucester  Ins.  Co.,    127   Mass.  151;   Gay  v.  Par- 

part,  106  U.  S.  679.] 

«  \Harris  v.   White,  81  N.  Y.  532,  548  ;  Dederich  v.  McAllister,  49  How. 


Chap.  XIII.]    THE  LAW  OF  EVIDENCE.  i8i 


Illustrations. 

[a)  A  prosecutes  B  for  theft,  and  wishes  the  Court  to  believe  that  B 
admitted  the  theft  to  C.     A  must  prove  the  admission. 

B  wishes  the  Court  to  believe  that,  at  the  time  in  question,  he  was  else- 
where.    He  must  prove  it.* 

{aa)  [A  sues  B  for  negligence  causing  damage.  The  burden  of  proving 
B's  negligence  rests  upon  A,  but  A  need  not  prove  the  absence  on  his 
own  part  of  contributory  negligence  ;  such  negligence  of  A  is  to  be  proved 
by  B  as  matter  of  defence.]  ^ 

(3)  A,  a  shipowner,  sues  B,  an  underwriter,  on  a  policy  of  insurance  on 
a  ship.  B  alleges  that  A  knew  of  and  concealed  from  B  material  facts. 
B  must  give  enough  evidence  to  throw  upon  A  the  burden  of  disproving 
his  knowledge  ;  but  slight  evidence  will  suffice  for  this  purpose. ^ 

(f )  In  actions  for  penalties  under  the  old  game  laws,  though  the  plain- 
tiff had  to  aver  that  the  defendant  was  not  duly  qualified,  and  was  obliged 
to  give  general  evidence  that  he  was  not,  the  burden  of  proving  any 
definite  qualification  was  on  the  defendant.* 


Pr.  351  ;  see  G.  IV.  J?.  Co.  v.  Bacon,  30  111.  347.  Thus  it  is  held  that  in 
proceedings  against  a  person  who  has  been  selling  liquor  or  doing  other 
acts  without  having  the  license  prescribed  by  law,  the  burden  is  on  him 
to  prove  that  he  has  a  license,  not  on  the  plaintiff  to  prove  the  want  of  a 
license.  People  v.  Nyce,  34  Hun,  298  ;  Cotnm  v.  Brownbridge,  i  Brews. 
(Pa.)  399  ;  Mass.  Pub.  St.  c.  214,  s.  12.] 

'  [See  p.  179,  n.  3.] 

2  {^Indianapolis,  etc.  R.  Co.  v.  Horst,  93  U.  S.  291 ;  Mallory  v.  Griffey,  85 
Pa.  St.  275  ;  A^.  y.  Exp.  Co.  v.  Nichols,  33  N.  J.  L.  434  ;  State  v.  B.  6- 
P.  R.  Co.,  58  Md.  482;  MacDougall  v.  Central  R.  Co.,  63  Cal.  431  ; 
Biesching  v.  St.  Louis  Gas  Co. ,  73  Mo.  219  ;  but  in  some  States  A  must 
prove  B's  negligence  and  that  he  was  not  himself  negligent.  Hale  v.  Smith, 
78  N.  Y.  480;  xMayo  v.  B.  &^  M.  R.  Co.,  104  Mass.  137;  Benson  v.  Tit- 
comb,  72  Me.  31  ;  Boree  v.  Danville,  53  Vt.  183.] 

^  Elkin  V.  Janson,  13  M.  &  W.  655.  See,  especially,  the  judgment  of 
Alderson,  B.,  663-6  ;   [cf.  Claflin  v.  Meyer,  75  N.  Y.  260.] 

*  I  Ph.  Ev.  556,  and  cases  there  quoted.  The  illustration  is  founded 
more  particularly  on  R.  v.  Jarvis,  in  a  note  to  R.  v.  Stone,  i  Ea.  639, 
where  Lord  Mansfield's  language  appears  to  imply  what  is  stated  above. 
[See  Potter  v.  Deyo,  19  Wend.  361  ;  Bliss  v.  Brainerd,  41  N.  H.  256.] 


i82  A  DIGEST  OF  [Part  III. 


Article   97. 

burden  of  proving  fact  to  be  proved  to  make 
evidence  admissible. 

The  burden  of  proving  any  fact  necessary  to  be  proved  in 
order  to  enable  any  person  to  give  evidence  of  any  other  fact 
is  on  the  person  who  wishes  to  give  such  evidence. 

Illustrations. 

(a)  A  wishes  to  prove  a  dying  declaration  by  B. 

A  must  prove  B's  death,  and  the  fact  that  he  had  given  up  all  hope  of 
life  when  he  made  the  statement.' 

{d)  A  wishes  to  prove,  by  secondary  evidence,  the  contents  of  a  lost 
document. 

A  must  prove  that  the  document  has  been  lost.^ 


'  [See  Art.  26,  ante.}  *  [See  Art  71,  attte.} 


Chap.  XIV.]    THE  LAW  OF  EVIDENCE.  183 


CHAPTER  XIV. 
ON  PRESUMPTIONS  AND  ESTOPPELS* 

Article  98. 

presumption  of  legitimacy. 

The  fact  that  any  person  was  born  during  the  continuance 
of  a  valid  marriage  between  his  mother  and  any  man,  or  within 
such  a  time  after  the  dissolution  thereof  and  before  the  cele- 
bration of  another  valid  marriage,  that  his  mother's  husband 
could  have  been  his  father,  is  conclusive  proof  that  he  is  the 
legitimate  child  of  his  mother's  husband,  unless  it  can  be 
shown 

either  that  his  mother  and  her  husband  had  no  access  to  each 
other  at  any  time  when  he  could  have  been  begotten,  regard 
being  had  both  to  the  date  of  the  birth  and  to  the  physical  con- 
dition of  the  husband, 

or  that  the  circumstances  of  their  access  (if  any)  were  such 
as  to  render  it  highly  improbable  that  sexual  intercourse  took 
place  between  them  when  it  occurred.' 

Neither  the  mother  nor  the  husband  is  a  competent  witness 
as  to  the  fact  of  their  having  or  not  having  had  sexual  inter- 
course with  each  other,  nor  are  any  declarations  by  them  upon 


*  See  Note  XXXV. 
1  [The  presumption  of  legitimacy,  it  is  said,  "  can  only  be  rebutted  by 
the  most  satisfactory  and  convincing  proof  that  the  husband  was  not  the 
father  of  the  child,"  or,  as  a  number  of  the  cases  express  it,  "  by  proof 
beyond  a  reasonable  doubt."  Cross  v.  Cross,  3  Pai.  139  ;  Van  Aernam 
V.  Van  Aernam,  I  Barb.  Ch.  375  ;  Phillips  v.  Allen,  2  Allen,  453  ;  Hem- 
tnenway  v.  Towner,  i  Id.  209  ;  Egbert  v.  Greenwalt,  44  Mich.  245 ;  State 
V.  Retnaine,  58  la.  46;  Patterson  v.  Gaines,  6  How.  (U.  S.)  550;  see 
Hawes  v.  Drae^er,  23  Ch.  D.  173  ;  N.  Y.  Rev.  St.  i.  642.] 


1 84  A  DIGEST  OF  [Part  III. 

that  subject  deemed  to  be  relevant  facts  when  the  legitimacy 
of  the  woman's  child  is  in  question,  whether  the  mother  or  her 
husband  can  be  called  as  a  witness  or  not,  provided  that  in 
applications  for  affiliation  orders  when  proof  has  been  given  of 
the  non-access  of  the  husband  at  any  time  when  his  wife's 
child  could  have  been  begotten,  the  wife  may  give  evidence  as 
to  the  person  by  whom  it  was  begotten.' 

Article  99. 

presumption  of  death  from  seven  years'  absence. 

A  person  shown  not  to  have  been  heard  of  for  seven  years  by 
those  (if  any)  who  if  he  had  been  alive  would  naturally  have 
heard  of  him,  is  presumed  to  be  dead,  unless  the  circumstances 
of  the  case  are  such  as  to  account  for  his  not  being  heard  of 
without  assuming  his  death  ;  but  there  is  no  presumption  as  to 
the  time  when  he  died,  and  the  burden  of  proving  his  death  at 
any  particular  time  is  upon  the  person  who  asserts  it." 


>  R.  V.  Luffe,  8  Ea.  207  ;  Cope  v.  ('ape,  i  Mo.  &  Ro.  272-4  ;  Legge  v. 
Edmonds,  25  L.  J.  Eq.  125,  see  p.  135;  R.  v.  Maiisfie/d,  i  Q.  B.  444; 
Morris  v.  Davies,  3  C.  &  P.  215.  I  am  not  aware  of  any  decision  as  to 
the  paternity  of  a  child  born  say  six  months  after  the  death  of  one  hus- 
band, and  three  months  after  the  mother's  marriage  to  another.  Amongst 
common  soldiers  in  India  such  a  question  might  easily.arise.  The  rule 
in  European  regiments  is  that  a  widow  not  remarried  within  the  year  (it 
used  to  be  six  months)  must  leave  the  regiment :  the  result  was  and  is 
that  widowhoods  are  usually  very  short.  [Gr.  Ev.  i.  §§  28,  344  ;  Abing- 
ton  V.  Duxbury,  105  Mass.  287  ;  Montgomery  v.  Montgomery ,  3  Barb.  Ch. 
132  ;  Tioga  Co,  v.  South  Creek  T'p.,  75  Pa.  St.  433  ;  Dennison  v.  Page,  29 
Id.  420  ;  People  v.  Overseers,  etc. ,  15  Barb.  286  ;  Chamberlain  v.  People,  23 
N.  Y.  85,  88  ;  Mink  v.  State,  60  Wis.  583  ;  Dean  v.  State,  29  Ind.  483.] 

2  McMahon  v.  McElroy,  5  Ir.  Rep.  Eq.  I  ;  Hopewell  v.  De  Pinna,  2 
Camp.  113  ;  Nepean  v.  Doe,  2  S.  L.  C.  562,  681 ;  Nepean  v.  Knight,  2  M. 
&  W.  894,  912  ;  R.  v.  Lumley,  L.  R.  1  C.  C.  R.  196 ;  and  see  the  caution 
of  Lord  Denman  in  R.  v.  Harborne,  2  A.  &  E.  544.  All  the  cases  are  col- 
lected and  considered  in  In  re  Phene's  Trust,  L.  R.  5  Ch.  App.  139.  The 
doctrine  is  also  much  discussed  in  Prudential  Assurance  Company  v.  Ed- 
monds^  L,.  R.  2  App.  Cas.  487.    The  principle  is  stated  to  the  same  effect 


Chap.  XIV.]      THE  LAW  OF  EVIDENCE.  185 

There  is  no  presumption  as  to  the  age  at  which  a  person  died 
who  is  shown  to  have  been  alive  at  a  given  time,  or  as  to  the 
order  in  which  two  or  more  persons  died  who  are  shown  to 
have  died  in  the  same  accident,  shipwreck,  or  battle.' 

Article  100. 

presumption  of  lost  grant.' 

When  it  has  been  shown  that  any  person  has,  for  a  long  pe- 
riod of  time,  exercised  any  proprietary  right  which  might  have 
had  a  lawful  origin  by  grant  or  license  from  the  Crown  or  from 
a  private  person,  and  the  exercise  of  which  might  and  naturally 
would  have  been  prevented  by  the  persons  interested  if  it  had 
not  had  a  lawful  origin,  there  is  a  presumption  that  such  right 
had  a  lawful  origin  and  that  it  was  created  by  a  proper  instru- 
ment which  has  been  lost.^ 


as  in  the  text  in  Re  Corbishley' s  Trusts,  L.  R.  14  Ch.  D.  846.  [Gr.  Ev.  i. 
§  41  ;  Davie  v.  Briggs,  97  U.  S.  628  ;  O'  Gara  v.  Eisenlohr,  38  N.  Y.  296  ; 
Keller  v.  Stuck,  4  Redf.  294  ;  Hyde  Park  v.  Canton,  130  Mass.  505  ;  Went- 
worth  v.  Wentworth,  71  Me.  72 ;  Keech  v.  Rittehart,  10  Pa.  St.  240 ; 
Cooper  V.  Cooper,  86  Ind.  75  ;  State  v.  Henke,  58  la.  457  ;  Hoyt  v.  Newbold, 
45  N.  J.  L.  219  ;  People  v.  Feilen,  58  Cal.  218,  224  ;  Whiting  v.  Nicoll,  46 
111.  230  ;  the  last  two  cases  maintain  a  rule  somewhat  different  from  the 
English.] 

'  IVingv.  Aiigrave,  8  H.  L.  C.  183,  198 ;  and  see  authorities  in  last  note. 
[Gr.  Ev.  i.  §$  29,  30 ;  Newell  v.  Nichols,  75  N.  Y.  78  ;  Russell  v.  Hallctt, 
23  Kan.  276  ;  Coyc  v.  Leach,  8  Met.  371  ;  see  Fuller  v.  Linzec,  135  Mass. 
468.] 

^  The  subject  of  the  doctrine  of  lost  grants  is  much  considered  in  Angus 
V.  Dalton,  L.  R.  3  Q.  B.  D.  84.  This  case  is  now  (Feb.  1881)  before  the 
House  of  Lords.  [It  has  since  been  decided  and  is  reported  in  6  App. 
Cas.  740 ;  see  Lehigh  R.  Co.  v.  McFarlan,  43  N.  J.  L.  605 ;  Ward  v. 
Warren,  82  N.  Y.  265.] 

'  [Gr.  Ev.  i.  %^  46,  47  ;  yackson  v.  McCall,  10  Johns.  377  ;  Jackson  v. 
Lunn,  3  Johns.  Cas.  109;  Carter  v.  Fishing  Co.,  77  Pa.  St.  310;  Oak- 
smith's  Lessee  v.  Johnston,  92  U.  S.  343.  It  is  said  in  this  last  case  that 
in  this  country  there  can  seldom  be  occasion  to  presume  a  grant  from  the 


1 86  A  DIGEST  OF  [Part  III. 


Illustrations. 

(a)  The  question  is,  whether  B  is  entitled  to  recover  from  A  the  pos- 
session of  lands  which  A's  father  and  mother  successively  occupied  from 
1754  to  1792  or  1793,  and  which  B  had  occupied  (without  title)  from  1793 
to  1809.  The  lands  formed  originally  an  encroachment  on  the  Forest  of 
Dean. 

The  undisturbed  occupation  for  thirty-nine  years  raises  a  presumption 
of  a  grant  from  the  Crown  to  A's  father.' 

{b)  A  fishing  mill-dam  was  erected  more  than  no  years  before  1861  in 
the  River  Derwent,  in  Cumberland  (not  being  navigable  at  that  place), 
and  was  used  for  more  than  sixty  years  before  1861  in  the  manner  in 
which  it  was  used  in  1861.  This  raises  a  presumption  that  all  the  upper 
proprietors  whose  rights  were  injuriously  affected  by  the  dam  had  granted 
a  right  to  erect  it.^ 

(c)  A  builds  a  windmill  near  B's  land  in  1829,  and  enjoys  a  free  current 
of  air  to  it  over  B's  land  as  of  right,  and  without  interruption  till  i860. 
This  enjoyment  raises  no  presumption  of  a  grant  by  B  of  a  right  to  such 
a  current  of  air,  as  it  would  not  be  natural  for  B  to  interrupt  it.^ 

{d )  No  length  of  enjoyment  (by  means  of  a  deep  well) ,  of  water  perco- 
lating through  underground  undefined  passages,  raises  a  presumption  of 
a  grant  from  the  owners  of  the  ground  under  which  the  water  so  perco- 
lates of  a  right  to  the  water.  ^ 


government,  except  in  cases  of  very  ancient  possessions  running  back  to 
colonial  days,  since,  from  the  beginning  of  the  century,  a  record  has  been 
preserved  of  all  such  grants] 

*  Goodtitle  v.  Baldwin,  11  Ea.  488.  The  presumption  was  rebutted  in 
this  case  by  an  e.xpress  provision  of  20  Ch.  II.  c.  3,  avoiding  grants  of  the 
Forest  of  Dean.     See  also  Doe  d.  Devine  v.  Wilson.^  10  Moo.  P.  C.  502. 

2  Leconfield  v.  Lonsdale,  L.  R.  5  C.  P.  657. 

3  Webb  V.  Bi7d,  13  C.  B.  (N.  S.)  841.  [As  to  the  reasons  upon  which 
this  and  the  following  decision  are  to  be  supported,  see  Dalton  v.  Ati^iis, 
6  App.  Cas.  796,  798,  824.  As  the  English  doctrine  that  a  right  to 
light  and  air  can  be  gained  by  prescription  is  generally  discarded  in  this 
country,  the  decision  in  Webb  v.  Bird  would  apply  a  fortiori.  See 
Parker  v.  Foote,  19  Wend.  309  ;   Gilmore  v.  Driscoll,  122  Mass.  199.] 

*  Chasemore  v.  Richards,  7  H.  L.  C.  349  ;  [Ckafficld  v.  Wilson,  28  Vt. 
49  ;  Wilson  v.  Neiv  Bedford,  108  Mass.  265 ;  Frazier  v.  Brown,  12  O.  St. 
294 ;  Roath  v.  Driscoll,  20  Ct.  533  ;  Wheatly  v.  Baugh,  25  Pa.  St.  528  ; 
Ellis  V.  Duncan,  21  Barb.  230,  29  N,  Y.  466 ;  see  Phelps  v.  Nowlen,  72  N, 
Y.  39] 


Chap.  XI V.J     THE  LAW  OF  EVIDENCE.  187 


Article  ioi.* 
presumption  of  regularity  and  of  deeds  to  complete 

TITLE. 

When  any  judicial  or  official  act  is  shown  to  have  been  done 
in  a  manner  substantially  regular,  it  is  presumed  that  formal 
requisites  for  its  validity  were  complied  with.' 

When  a  person  in  possession  of  any  property  is  shown  to  be 
entitled  to  the  beneficial  ownership  thereof,  there  is  a  presump- 
tion that  every  instrument  has  been  executed  which  it  was  the 
legal  duty  of  his  trustees  to  execute  in  order  to  perfect  his 
title.'  =" 


*  See  Note  XXXVII,  and  Macdougall  v.  Purriei\  3  Bligh,  N.  C.  433. 
R.  V.  Crcsswell,  L.  R.  I  Q.  B.  D.  (C.  C.  R. )  446,  is  a  recent  illustration 
of  the  effect  of  this  presumption. 

'  [  Wood  V.  Morehouse,  45  N.  Y.  368  ;  State  v.  Potter,  52  Vt.  33  ;  Cornet t 
V.  Williams,  20  Wall.  226  ;  McMurray' s  Heirs  v.  Erie,  59  Pa.  St.  223  ; 
Pells  V.  Webquish,  129  Mass.  469 ;  Brownell  v.  Palmer,  22  Ct.  107,  119. 
It  is  presumed  that  public  officers  perform  their  duty  and  do  not  exceed 
their  lawful  authority  ;  also  that  corporations  act  within  their  lawful 
powers,  etc.  Id.;  Pr ingle  v.  Woolworth,  9c  N.  Y.  502,  510  ;  Gr.  Ev.  i.  $$ 
38,  n.,  40,  n.  As  to  similar  presumptions  from  lapse  of  time,  see  Gr.  Ev. 
i.  $  20  ;  Hilton  v.  Bender,  69  N.  Y.  75.] 

''■  Doe  A.  Hammond  V.  Cooke,  6  Bing.  174,  179;  [Jackson  v.  Cole,  4  Cow. 
587 ;  yackson  v.  Moore,  13  Johns.  513  ;  Perry  on  Trusts,  i.  %  349,  3d  ed.] 

'  [Other  important  presumptions  are  :  (i)  That  a  previously  existing 
personal  relation  or  state  of  things  continues  to  exist,  as  e.g.,  a  relation 
between  parties  i^Eames  v.  Eames,  41  N.  H.  177)  ;  life  {Stevens  v.  McNa- 
viara,  36  Me.  176)  ;  residence  {Greenfield  v.  Camden,  74  Me.  56;  Nixon 
V.  Palmer,  10  Barb.  175)  ;  insanity  {State  v.  Wilner,  40  Wis.  304  ;  Cooi 
V.  Cook,  53  Barb.  180)  ;  status  {Kidder  v.  Stevefis,  60  Cal.  414)  ;  and  many 
other  matters.  Gr.  Ev.  i.  $  41  ;  Beckwith  v.  Phaleti,  65  N.  Y.  322.  The 
presumption  is  rebuttable.  Its  force  and  duration  will  be  affected  by  the 
transient  or  permanent  nature  of  the  subject-matter.  Donahue  v.  Cole- 
man, 49  Ct.  464,  and  cases  supra. 

(2)  That  the  regular  course  of  business  in  a  public  office  or  in  the 
course  of  trade  or  conduct  of  affairs  is  followed  (Gr.  Ev.  i.  §§  38,  40)  ;  as 
that  letters  properly  mailed  reach  their  destination  (see  Art.  13,  ante ; 


A  DIGEST  OF  [Part  III. 


Article  102.* 
estoppel  by  conduct. 

When  one  person  by  anything  which  he  does  or  says,  or  ab- 
stains from  doing  or  saying,  intentionally  causes  or  permits 
another  person  to  believe  a  thing  to  be  true,  and  to  act  upon 
such  belief  otherwise  than  but  for  that  belief  he  would  have 
acted,  neither  the  person  first  mentioned  nor  his  representative 
in  interest  is  allowed,  in  any  suit  or  proceeding  between  him- 
self and  such  person  or  his  representative  in  interest,  to  deny 
the  truth  of  that  thing.' 

When  any  person  under  a  legal  duty  to  any  other  person  to 
conduct  himself  with  reasonable  caution  in  the  transaction  of 
any  business  neglects  that  duty,  and  when  the  person  to  whom 
the  duty  is  owing  alters  his  position  for  the  worse  because  he  is 
misled  as  to  the  conduct  of  the  negligent  person  by  a  fraud,  of 
which  such  neglect  is  in  the  natural  course  of  things  the  proxi- 
mate cause,  the  negligent  person  is  not  permitted  to  deny  that 


*  See  Note  XXXVIIL 
ylustin  v.  Holland^  69  N.  Y.  571)  ;  that  a  bill  or  note  found  after  circula- 
tion in  the  hands  of  the  maker  has  been  paid  {Garlockw.  Geortner,  7 
Wend.  198  ;  Connelly  v.  McKean,  64  Pa.  St.  113)  ;  that  a  person  having 
the  possession  of  property  is  the  owner.  Rawlcy  v.  Brown,  71  N.  Y.  85  ; 
Vining  v.  Baker,  53  Me.  544.  These  are  disputable  presumptions,  and 
are  often  called  presumptions  of  fact,     (Id.) 

(3)  That  a  man  intends  the  natural  and  probable  consequences  of  his 
acts.     FUkins  V.  People,  69  N.  Y.  loi  ;  Lanahan  v.   Comm. ,  84  Pa.  St.  80. 

(4)  That  a  wife  committing  a  crime  (except  treason,  murder,  and  per- 
haps robbery),  in  the  presence  of  her  husband,  acts  under  his  coercion. 
This  and  the  last  presumption  are  disputable.  People  v.  Ryland,  97  N. 
Y.  126;  State  V.  Shee,  13  R.  I.  535  ;   Co?nm.  v.  Gormley,  133  Mass.  580.] 

>  [Andrews  v.  y£tna  Ins.  Co.,  85  N.  Y.  334  ;  Viele  v.  Jackson,  82  N.  Y. 
32;  Dickerson  v.  Colgrove,  100  U.  S.  578  ;  Morgan  v.  Railroad  Co.,  96  Id. 
716;  Carroll  V.  M.  &>  R.  R.  Corp.,  iii  Mass.  i;  Mutual  Life  Ins.  Co.  v, 
Morris,  31  N.  J.  Eq.  583  ;  Slocumb  v.  Railroad  Co.,  57  la.  675.] 


Chap.  XIV.]      THE  LAW  OF  EVIDENCE. 


he  acted  in  the  manner  in  which  the  other  person  was  led  by 
such  fraud  to  believe  him  to  act.' 

Illustrations. 

(iz)  A,  the  owner  of  machinery  in  B's  possession,  which  is  taken  in 
execution  by  C,  abstains  from  claiming  it  for  some  months,  and  converses 
with  C's  attorney  without  referring  to  his  claim,  and  by  these  means  im- 
presses C  with  the  belief  that  the  machinery  is  B's.  C  sells  the  machinery. 
A  is  estopped  from  denying  that  it  is  B's." 

(h)  A,  a  retiring  partner  of  B,  gives  no  notice  to  the  customers  of  the 
firm  that  he  is  no  longer  B's  partner.  In  an  action  by  a  customer,  he  can- 
not deny  that  he  is  B's  partner.^ 

(f)  A  sues  B  for  a  wrongful  imprisonment.  The  imprisonment  was 
wrongful,  if  B  had  a  certain  original  warrant ;  rightful,  if  he  had  only  a 
copy.  B  had  in  fact  a  copy.  He  led  A  to  believe  that  he  had  the  original, 
though  not  with  the  intention  that  A  should  act  otherwise  than  he  actually 
did,  nor  did  A  so  act.  B  may  show  that  he  had  only  a  copy  and  not  the 
original.* 

i^d)  A  sells  eighty  quarters  of  barley  to  B,  but  does  not  specifically  ap- 
propriate to  B  any  quarters.  B  sells  sixty  of  the  eighty  quarters  to  C. 
C  informs  A,  who  assents  to  the  transfer.  C  being  satisfied  with  this,  says 
nothing  further  to  B  as  to  delivery.  B  becomes  bankrupt.  A  cannot,  in 
an  action  by  C  to  recover  the  barley,  deny  that  h^  holds  for  C  on  the 
ground  that,  for  want  of  specific  appropriation,  no  property  passed  to  B.* 

((■)  A  signs  blank  cheques  and  gives  them  to  his  wife  to  fill  up  as  she 
wants  money.  A's  wife  fills  up  a  cheque  for  ;^5o  is.  so  carelessly  that 
room  is  left  for  the  insertion  of  figures  before  the  "  50"  and  for  the  insertion 
of  words  before  the  "  fifty."     She  then  gives  it  to  a  clerk  of  A's  to  get  it 


1  {^Putnam  v.  Sullivan,  4  Mass.  45  ;  Chapman  v.  Rose,  56  N.  Y.  137  ; 
Ruddell  v.  Fhalor,  72  Ind.  533  ;  Ross  v.  Doland,  29  O.  St.  473  ;  Shirts  v. 
Overjohn,  60  Mo.  305  ;  cf.  A'ance  v.  Lary,  5  Ala.  370  ;  Caulkins  v.  Whisler, 
29  la.  495.] 

2  Pickard  v.  Sears,  6  A.  &  E.  469,  474  ;  [see  Thompson  v.  Blanchard,  4 
N.  Y.  303  ;  Fall  Riv.  Bk.  v.  Duffinton,  97  Mass.  500.] 

'  (Per  Parke,  B.)  Freeman  v.  Cocke,  2  Ex.  661  ;  [see  Austitt  v.  Holland, 
69  N.  Y.  571  ;     Lovejoy  v.  Spafford,  93  U.  S.  430.] 

*  Howard  v.  Hudson,  2  E.  &   B.  i. 

'  Knights  V.  Wiffen,  L.  R.  5  Q  B.  660.  [This  case  has  been  criticised 
in  this  country.  Kent's  Comm.  iii.  85,  note  i  (13th  ed.)  ;  see  Darnardv. 
Campbell,  55  N.  Y.  456.] 


I90  A  DIGEST  OF  [Part  III. 

cashed.  He  writes  3  before  "50  "and  "  three  hundred  and  "  before  "  fifty." 
A's  banker  pays  the  cheque  so  altered  in  good  faith.  A  cannot  recover 
against  the  banker.' 

(/")  A  carelessly  leaves  his  door  unlocked,  whereby  his  goods  are 
stolen.  He  is  not  estopped  from  denying  the  title  of  an  innocent  pur- 
chaser from  the  thief.  ^ 

Article  103. 

estoppel  of  tenant  and  licensee. 

No  tenant,  and  no  person  claiming  through  any  tenant,  of  any 
land  or  hereditament  of  which  he  has  been  let  into  possession, 
or  for  which  he  has  paid  rent,  is,  till  he  has  given  up  posses- 
sion, permitted  to  deny  that  the  landlord  had,  at  the  time 
when  the  tenant  was  let  into  possession  or  paid  the  rent,  a 
title  to  such  land  or  hereditament ; '  and  no  person  who  came 
upon  any  land  by  the  license  of  the  person  in  possession 
thereof,  is,  whilst  he  remains  on  it,  permitted  to  deny  that 
such  person  had  a  title  to  such  possession  at  the  time  when 
such  license  was  given." 


'  Young  V.  Grote,  4  Bing.  253.  [This  case  has  been  much  considered  of 
late  and  its  authority  is  carefully  limited  to  its  special  facts.  Greenfield 
Sav.  Bk.  V.  Stowell,  123  Mass.  196  ;  Lehman  v.  Central  R.  Co.^  12  F.  R, 
595  ;  McGrath  v.  Clark,  56  N.  Y.  34  ;  Holmes  v.  Trumper,  22  Mich.  427; 
of.  Leas  v.  Wells,  loi  Pa.  St.  57 ;  Yocnm  v.  Smith,  63  111.  321  ;  see  p.  160, 
n.  2,  ante.'\ 

'  Per  Blackburn,  J.,  in  Swan  v.  A^.  B.  Australasian  Co.,  2  H.  &  C.  181. 
See  Baxendale  v.  Bennett,  3  Q.  B.  D.  525.  The  earlier  cases  on  the  sub- 
ject are  much  discussed  in  yordcn  v.  Money,  5  H.  &  C.  209-16,  234-5. 
[Cf.  People  V.  Bank  N,  America,  75  N.  Y.  547;  Lowery  v.  Telegraph  Co., 
60  N.  Y.  198.] 

3  Doe  V.  Barton,  11  A.  &  E.  307  ;  Doe  v.  Smyth,  4  M.  &  S.  347  ;  Doe  v. 
Pegg,  I  T.  R.  760  (note)  ;  {Stott  v.  Rutherford,  92  U.  S.  107  ;  Prevot  v. 
Lawrence,  51  N.  Y.  219  ;  Whalin  v.  White,  25  N.  Y.  462  ;  Gage  v.  Camp- 
bell, 131  Mass.  566;  Washb.  R.  P.  i.  555-569,  4th  ed.] 

^  Doe  V.  Baytup,  3  A.  &  E.  188  ;  \Glynn  v.  George,  20  N.  H.  114  ;  Towns 
V.  Buttet field,  97  Mass.  105.] 


Chap.  XIV.]     THE  LAW  OF  EVIDENCE.  191 

Article  104. 
estoppel  of  acceptor  of  bill  of  exchange. 

No  acceptor  of  a  bill  of  exchange  is  permitted  to  deny  the 
signature  of  the  drawer  or  his  capacity  to  draw,  or  if  the  bill 
is  payable  to  the  order  of  the  drawer,  his  capacity  to  endorse 
the  bill,  though  he  may  deny  the  fact  of  the  endorsement ; ' 
nor  if  the  bill  be  drawn  by  procuration,  the  authority  of  the 
agent,  by  whom  it  purports  to  be  drawn,  to  draw  in  the  name 
of  the  principal,"  though  he  may  deny  his  authority  to  endorse 
it.'  If  the  bill  is  accepted  in  blank,  the  acceptor  may  not  deny 
the  fact  that  the  drawer  endorsed  it.'' 

Article  105. 

ESTOPPEL  OF  bailee,  AGENT,  AND  LICENSEE. 

No  bailee,  agent,  or  licensee  is  permitted  to  deny  that  the 
bailor,  principal,  or  licensor,  by  whom  any  goods  were  en- 
trusted to  any  of  them  respectively,  was  entitled  to  those  goods 
at  the  time  when  they  were  so  entrusted.* 

Provided  that  any  such  bailee,  agent,  or  licensee,  may  show 
that  he  was  compelled  to  deliver  up  any  such  goods  to  some 
person  who  had  a  right  to  them  as  against  his  bailor,  princi- 
pal, or  licensor,  or  that  his  bailor,  principal,  or  licensor,  wrong- 
fully and  without  notice  to  the  bailee,  agent,  or  licensee,  ob- 


'  Garland V.  Jacpmh,  L.  R.  8  Ex.  216;  \White\.  Continental  Nat.  Bk., 
64  N.  Y.  316  ;  Hoffrnan  v.  Bank  of  Milwaukee,  12  Wall.  181  ;  National 
Bank  -ii.  Bangs,  106  Mass.  441.] 

2  Sanderson  v.  Coleman,  4  M.  &  G.  209. 

'  Robinson  v.   Yarrow,  7  Tau.  455. 

*  L.  i^  S.  W.  Bank  v.  IVentivortk,  L.  R.  5  Ex.  D.  96.  [See  as  to  this 
article,  Daniel,  Neg.  Inst.,  i.  $$  532-541.] 

<>  [Sinclair  v.  Murphy,  14  Mich.  392  ;  Osgood  v.  Nichols,  5  Gray,  420 ; 
Roberts  v.  Noyes,  76  Me.  590  ;  Jackson  v.  Allen,  120  Mass.  64,  79.] 


192  A  DIGEST  OF  [Part  III. 

tained  the  goods  from  a  third  person  who  has  claimed  them 
from  such  bailee,  agent,  or  licensee.' 

Every  bill  of  lading  in  the  hands  of  a  consignee  or  endorsee 
for  valuable  consideration,  representing  goods  to  have  been 
shipped  on  board  a  vessel,  is  conclusive  proof  of  that  ship- 
ment as  against  the  master  or  other  person  signing  the  same, 
notwithstanding  that  such  goods  or  some  part  thereof  may  not 
have  been  so  shipped,  unless  such  holder  of  the  bill  of  lading 
had  actual  notice  at  the  time  of  receiving  the  same  that  the 
goods  had  not  been  in  fact  laden  on  board,  provided  that  the 
master  or  other  person  so  signing  may  exonerate  himself  in 
respect  of  such  misrepresentation  by  showing  that  it  was 
caused  without  any  default  on  his  part,  and  wholly  by  the 
fraud  of  the  shipper  or  of  the  holder,  or  some  person  under 
whom  the  holder  holds." 


1  Dixon  V.  Hammond,  2  B.  &  A.  313  ;  Crosslcy  v.  Dixon,  10  H.  L.  C. 
293  ;  Gosling  v.  Birnie,  7  Bing.  339  ;  Hardman  v.  Wilcock,  9  Bing.  382  ; 
Biddle  v.  Bond,  34  L.  J.  Q.  B.  137,  [6  B.  &  S.  225]  ;  Wilson  v.  Anderton, 
I  B.  &  Ad.  450.  As  to  carriers,  see  Sherida>i  v.  A^ew  Quay,  4  C.  B.  (N.  S.) 
618.  [  The  Idaho,  93  U.  S.  575  ;  Western  Trans.  Co.  v.  Barber,  56  N.  Y. 
544;  Kings.  Richards,  6  Whart.  418.] 

2  18  &  19  Vict.  c.  Ill,  s.  3.  [But  it  is  held  that  a  ship-owner  is  not  es- 
topped by  the  signature  of  a  bill  of  lading  by  the  master  from  showing 
that  the  goods  or  some  of  them  were  never  actually  put  on  board.  Brown 
V.  Powell  Co. ,  L.  R.  10  C.  P.  562  ;  see  McLean  v.  Fleming,  L.  R.  2  Sc. 
App.  128. 

The  law  of  this  country  is  not  governed  by  statutes  like  the  above. 
The  general  rules  here  in  force  are  stated  in  Sears  v.  Wiiigate,  3  Allen, 
103:  "  (1)  The  receipt  in  a  bill  of  lading  is  open  to  explanation  between 
the  master  and  the  shipper  of  the  goods.  (2)  The  master  is  estopped,  as 
against  a  consignee  who  is  not  a  party  to  the  contract  and  as  against  an 
assignee  of  the  bill  of  lading,  when  either  has  taken  it  for  a  valuable  con- 
sideration upon  the  faith  of  the  acknowledgments  which  it  contains,  to 
deny  the  truth  of  the  statements  to  which  he  has  given  credit  by  his  sig- 
nature, so  far  as  those  statements  relate  to  matters  which  are  or  ought  to 
be  within  his  knowledge.  (3)  When  the  master  is  acting  within  the  lim- 
its of  his  authority,  the  owners  are  estopped  in  like  manner  with  him  , 
but  it  is  not  within  the  general  scope  of  the  master's  authority  to  sign 


Chap.  XV.]       THE  LAW  OF  EVIDENCE.  19J 


CHAPTER   XV. 
OF   THE    COMPETENCY  OF  WITNESSES* 

Article  106. 

who  may  testify. 

All  persons  are  competent  to   testify  in  all  cases  except  as 
hereinafter  excepted.' 


*  See  Note  XXXIX. 
bills  of  lading  for  any  goods  not  actually  received  on  board."     See  also 
Sch.  Freeman  v.  Buckingham,    i8   How.    (U.    S.)   182;    The  Delaware,  14 
Wall.  579,  602  ;  Meyer  v.  Peck,  28  N.  Y.  590  ;  in  Armour  v.  Mich.  C.  R. 
Co.,  65  N.  Y.  Ill,  the  last  proposition  seems  not  to  be  approved.] 

'  [The  common  law  rules  disqualifying  parties  and  persons  interested 
in  the  event  of  the  suit  from  being  witnesses  are  now  almost  universally 
abolished.  In  some  courts,  however,  special  exceptions  are  still  in  force 
to  a  limited  extent.  See  U.  S.  v.  Clark,  96  U.  S.  37  ;  Guldin' s  Adm'rs 
V.  Guldin' s  Adm'rs,  97  Pa.  St.  411.  And,  moreover,  there  is  established 
by  statute  in  most  States  one  important  exception,  prohibiting  a  party 
from  testifying  in  an  action  against  an  executor  or  administrator  concern- 
ing a  transaction  with  the  decedent.  These  statutes  differ  in  details,  but 
their  general  features  may  be  well  illustrated  by  the  law  of  New  York. 
This  provides  that,  in  a  civil  action  or  special  proceeding,  a  party  or  per- 
son interested  in  the  event  (or  a  predecessor  of  such  person)  shall  not  be 
examined  as  a  witness  in  his  own  behalf  or  interest  (or  in  behalf  of  his 
successor  in  interest),  against  the  executor,  administrator,  or  survivor  of 
a  deceased  person,  or  the  committee  of  a  lunatic  (or  the  successor  in  in- 
terest of  such  decedent  or  lunatic),  concerning  a  personal  transaction  or 
communication  between  the  witness  and  the  decedent  or  lunatic.  Such 
testimony  is,  however,  receivable  if  the  executor,  etc.,  is  examined  in  his 
own  behalf,  or  the  testimony  of  the  decedent  or  lunatic  concerning  the 
same  transaction,  etc.,  is  given  in  evidence.  N.  Y.  Code  Civ.  Pro.  $  829. 
Thus  in  an  action  by  an  attorney  against  the  executor  of  a  deceased  per- 


194  A  DIGEST  OF  [Part  III. 

Article  107. 
what  witnesses  are  incompetent.' 

A  witness  is  incompetent  if  in  the  opinion  of  the  judge  he  is 
prevented  by  extreme  youth,  disease  affecting  his  mind,  or 
any  other  cause  of  the  same  kind,  from  recollecting  the  mat- 
ter on  which  he  is  to  testify,  from  understanding  the  questions 
put  to  him,  from  giving  rational  answers  to  those  questions,  or 
from  knowing  that  he  ought  to  speak  the  truth.* 

A  witness  unable  to  speak  or  hear  is  not  incompetent,  but 
may  give  his  evidence  by  writing  or  by  signs,  or  in  any  other 
manner  in  which  he  can  make  it  intelligible  ;  but  such  writing 


son  to  recover  for  legal  services,  the  plaintiff  cannot  be  a  witness  and 
testify  as  to  advice  given  by  him  to  the  decedent.  Brague  v.  Lord,  67 
N.  Y.  495  ;  see  Holcomb  v.  Holcomb,  95  N.  Y.  316  ;  Pope  v.  Allen,  90  N.  Y. 
298. 

The  law  of  Congress  is  that  in  an  action  by  or  against  an  executor, 
etc.,  neither  party  shall  testify  against  the  other  as  to  transactions  with 
the  decedent,  unless  called  to  testify  thereto  by  the  opposite  party  or  re- 
quired to  do  so  by  the  court.  U.  S.  Rev.  St.  ^  858  ;  Potter  v.  National 
Bank,  102  U.  S.  163.  As  to  the  law  of  other  States,  see  Hainish  v.  Herr, 
98  Pa.  St.  6  ;  Wells  v.  Wells,  33  N.  J.  Eq.  4  ;  Downey  v.  Andrus,  43 
Mich.  65  ;  Wh.  Ev.  i.  §§  466-477.  J 

'  See  Note  XL.  A  witness  under  sentence  of  death  was  said  to  be  in- 
competent in  R.  V.   Webb,  11  Cox,  133,  sed  qufsre. 

2  [As  to  children,  see  Gr.  Ev.  i.  §  367 ;  Comrn.  v.  Miillins,  2  Allen,  295  ; 
Day  V.  Day,  56  N.  H.  316  ;  Draper  v.  Draper,  68  111.  17 ;  Carter  v.  State, 
63  Ala.  52;  McGuire  v.  People,  44  Mich.  286  ;  State  v.  Levy,  23  Minn. 
104  ;  State  v.  Scanlan,  58  Mo.  204  ;  yones  v.  People,  6  Park.  Cr.  126  ;  as 
to  persons  of  unsound  mind,  Gr.  Ev.  i.  §  365  ;  Livingston  v.  Kreisted,  10 
Johns.  362;  Holcomb  v.  Holcomb,  28  Ct.  177  ;  Coleman  v.  Comm.,  25  Gratt. 
865  ;  Kendall  v.  May,  10  Allen,  59  ;  as  to  intoxicated  persons,  to  whom  the 
same  rules  apply,  Hartford  v.  Palmer,  16  Johns.  143  ;  Gould  v.  Craw- 
ford^ 2  Pa.  St.  89.  Even  lunatics  have  been  allowed  to  testify,  if  of  suffi- 
cient understanding.  People  v.  N.  V.  Hospital,  3  Abb.  N.  C.  229  ;  Dist. 
of  Col.  v.  Armes,  107  U.  S.  519  ;  see  34  N.  J.  Eq.  427.] 


Chap.  XV.]       THE  LAW  OF  EVIDENCE.  195 

must  be  written  and  such  signs  made  in  open  Court.'     Evi- 
dence so  given  is  deemed  to  be  oral  evidence.' 

Article  108.* 
competency  in  criminal  cases. 

In  criminal  cases  the  accused  person  and  his  or  her  wife  or 
husband,  and  every  person  and  the  wife  or  husband  of  every 
person  jointly  indicted  with  him,  is  incompetent  to  testify.' 

Provided  that  in  any  criminal  proceeding  against  a  husband 
or  wife  for  any  bodily  injury  or  violence  inflicted   upon  his  or 


*  See  Note  XLL 

'  [Gr.  Ev.  i.  %  366  ;  \Vh.  Ev.  i.  $|J  406,  407  ;  Quhin  v.  Halbert,  55  Vt. 
224.] 

^  [Persons  not  believing  in  the  existence  of  a  God  who  will  punish  false 
swearing  are  also  incompetent  witnesses  by  common  law.  Blair  v.  Sca- 
ver,  26  Pa.  St.  274  ;  People  v.  Matteson,  2  Cow.  433  ;  Free  v.  Buckingha7n,  59 
N.  H.  219  ;  Arnd  v.  Atnling,  53  Md.  192  ;  Clinton  v.  State,  33  O.  St.  27. 
But  this  disqualification  has  been  removed  in  many  States  or  rendered 
less  stringent.  Gr.  Ev.  i.  ^^  368-371  ;  Wh.  Ev.  i.  $^  395,  396  ;  Bush  v. 
Comfn.,  80  Ky.  244.  But  in  some  States,  where  atheism  no  longer  dis- 
qualifies, it  may  nevertheless  be  shown  to  affect  the  witness's  credit. 
Stanbro  v.  Hopkins,  28  Barb.  265  ;  Searcy  v.  Miller,  57  la.  613.  It  is  the 
general  rule,  however,  that  the  witness  must  not  himself  be  examined  as 
to  his  religious  belief.     (See  all  the  cases.) 

Infamous  persons,  i.e.,  persons  convicted  of  treason,  felony,  or  the 
crimen  falsi,  are  also  incompetent  witnesses  at  common  law  in  the  State 
of  their  conviction.  The  crimen  falsi  includes,  in  general,  offenses 
tending  to  pervert  the  administration  of  justice  through  falsehood  and 
fraud,  as  e.g.,  perjury,  forgery,  bribery  of  witnesses,  etc.  Gr.  Ev.  i.  ^^ 
ST^-yj^  '<  ^Vh.  Ev.  i.  §  397  ;  Schuylkill  Co.  v.  Copley,  67  Pa.  St.  386  ;  Tay- 
lor v.  State,  62  Ala.  164  ;  State  v.  Randolph,  24  Ct.  363.  This  disability 
may  be  removed  by  a  reversal  of  the  judgment  or  by  pardon.  Convic- 
tion by  courts  in  other  States,  it  is  generally  held,  does  not  disqualify. 
Gr.  Ev.  i.  §$  376-378  ;  Sims  v.  Sims,  75  N.  Y.  466.  But  in  many  States, 
infamy  no  longer  disqualifies,  though  it  may  be  proved  to  affect  credibil- 
ity. Wh.  Ev.  i.  $  397  ;  N.  Y.  Code  Civ.  Pro.  $  832  ;  Mass.  Pub.  St.,  c. 
169,  $  19  ;  People  v.  McGloin,  91  N.  Y.  241  ;  U.  S.  v.  Biebusch,  I  F.  R. 
213;  see  Art.  lyi,  post,  note.] 

="  Ji.  v.  Payne,  L.  R.  I  C.  C.  R.  349,  and  R.  v.   Thompson,  Id.  377. 


196  A  DIGEST  OF  [Part  III. 

her  wife  or  husband,  such  wife  or  husband  is  competent  and 
compellable  to  testify.'  * 

Article  109. 

[husband  and  wife   in   civil  cases — CASES  OF  ADULTERY.] 

[In  civil  cases  the  lawful  husband  or  wife  of  a  party,  or  of  a 
person  whose  interests  are  directly  involved  in  the  suit,  is  an 


'  Reeve  v.  Wood,  5  B.  &  S.  364.  Treason  has  been  also  supposed  to 
form  an  exemption.  See  T.  E.  s.  1273.  [These  general  rules  of  the 
common  law  are  still  in  force  in  the  different  States,  unless  abolished  or 
modified  by  statute.  Gr.  Ev.  i.  §1$  330,  334-346,  362  ;  Wh.  Cr.  Ev.  %^ 
390-402,  427.  But  if  a  co-defendant  be  discharged  from  the  record,  as 
by  the  entry  of  a  7ioUe  prosequi,  or  by  an  acquittal,  etc. ,  he  may  be  a 
witness  against,  and  in  some  cases  for,  the  others.  Gr.  Ev.  i.  %  363  ; 
Wh.  Cr.  Ev.  §  445  ;  Linsday  v.  People,  63  N.  Y.  143  ;  State  v.  Jones,  51 
Me.  125  ;  but  not  otherwise,  Kehoe  v.  Comm.,  85  Pa.  St.  127. 

As  to  husband  and  wife,  there  were  one  or  two  other  exceptions  be- 
sides that  stated  in  the  text.     Gr.  Ev.  i.  §§  342,  344. 

But  it  is  now  provided  by  the  laws  of  Congress  and  in  many  States, 
that  the  defendant  may  be  a  witness  in  his  own  behalf,  though  the  quali- 
fication is  generally  added  that  his  failure  to  testify  shall  not  create  any 
presumption  against  him.  Act  of  Congress,  Mar.  16,  1878  ;  N.  Y.  Code 
Cr.  Pro.  §  393  ;  Mass.  Pub.  St.,  c.  169,  ^  18,  par.  3  ;  Wh.  Cr.  Ev.  §$  428- 
436;  see  Comm.  v.  Scott,  123  Mass.  239  ;  Chambers  v.  People,  105  111,  409  ; 
People  v.  Courtney,  94  N.  Y.  490  ;  Showaltcr  v.  State,  84  Ind.  562.  So 
by  the  statutes  of  some  States,  persons  jointly  indicted  may  be  witnesses 
for  or  against  each  other  (People  v,  Dowluig,  84  N.  Y.  478  ;  Comm.  v. 
Brown,  130  Mass.  279 ;  State  v.  Barrows.^  76  Me.  401  ;  Wh.  Cr.  Ev.  § 
445);  or  the  husband  or  wife  of  the  defendant  may  be  a  witness,  except  to 
disclose  confidential  communications.  N.  Y.  Pen.  Code,  %  715.  But 
generally  husbands  and  wives  of  defendants  are  not  compellable  to  be 
witnesses  in  criminal  cases.  Mass.  Pub.  St.,  c.  169,  §  18,  par.  2;  Wh. 
Cr.  Ev.  %%  400-403  ;  Gibson  v.  Comm.,  87  Pa.  St.,  253  ;  People  v.  Langtree, 
64Cal.  256.] 

'  [At  this  point  Mr.  Stephen  adds  the  following  English  statutory  qual- 
ifications :  "The  following  proceedings  at  law  are  not  criminal  within 
the  meaning  of  this  article, — Trials  of  indictments  for  the  non-repair  of 
public  highways,  or    bridges,   or  for  nuisances   to  any  public  highway, 


Chap.  XV.]       THE  LAW  OF  EVIDENCE.  197 


incompetent  witness  by  the  common  law.'  And  even  after  the 
marriage  is  dissolved  by  the  death  of  either  party  or  by  di- 
vorce, neither  party  thereto  can  testify  as  to  the  facts  learned 
through  the  confidence  of  the  marital  relation,  but  may  as  to 
other  facts. ^  These  rules  apply  to  proceedings  instituted  in 
consequence  of  adultery^  as  well  as  to  other  civil  cases.]  ■* 


river  or  bridge  (40  &  41  Vict.  c.  14)  ;  proceedings  instituted  for  the  pur- 
pose of  trying  civil  rights  only  (Id.)  ;  proceedings  on  the  Revenue  side 
of  the  Exchequer  Division  of  the  High  Court  of  Justice  (28  &  29  Vict.  c. 
104,  s.  34)"' J 

'  [Gr.  Ev.  i.  j^  334-346  ;  I.abarce  v.  Wood,  54  Vt.  452  ;  Keep  v.  Griggs, 
12  Bradw.  511.  But  in  collateral  proceedings,  not  immediately  affecting 
their  mutual  interest,  the  testimony  of  husband  or  wife  might  be  re- 
ceived, though  tending  to  criminate  the  other.  Gr.  Ev.  i.  %  342  ;  sqq  post, 
Art.  120,  note.] 

2  [Ralcliff  V.  Wales,  I  Hill,  63  ;  Dickerman  v.  Graves,  6  Gush.  308  ; 
Robb's  Appeal^  98  Pa.  St.  501  ;  Wotlrich  v.  Freeman,  71  N.  Y.  601 ;  U.  S. 
V.  Guiteau,  i  Mackey,  498  ;  Bishop,  M.  &  D.  ii.  $723;  but  see  A'^'a  v. 
Tucker,  51  111.  no.] 

^  [Id.     For  a  special  rule  in  bastardy  cases,  see  Art.  98,  aute.^ 

■•  [The  original  article  of  Mr.  Stephen,  stating  the  present  English  law, 
is  as  follows  : 

"COMPETENCY    IN    PROCEEDINGS    RELATING    TO    ADULTERY." 

"  In  proceedings  instituted  in  consequence  of  adultery,  the  parties  and 
their  husbands  and  wives  are  competent  witnesses,  provided  that  no  wit- 
ness in  any  (such  ?)  proceeding,  whether  a  party  to  the  suit  or  not,  is  lia- 
ble to  be  asked  or  bound  to  answer  any  question  tending  to  show  that 
he  or  she  has  been  guilty  of  adultery,  unless  such  witness  has  already 
given  evidence  in  the  same  proceeding  in  disproof  of  his  or  her  alleged 
adultery.  32  &  33  Vict.  c.  6S,  s.  3.  (The  word  '  such  '  seems  to  have  been 
omitted  accidentally.)  " 

In  this  country  also,  by  modern  statutes,  husband  and  wife  are  com- 
monly allowed  to  testify,  but  special  limitations  are  usually  imposed  in 
cases  grounded  upon  adultery.  Thus  in  New  York,  husband  or  wife 
cannot  testify  against  the  other  in  proceedings  founded  upon  an  allega- 
tion of  adultery,  except  to  prove  the  marriage  ;  and  in  an  action  for  crim- 
inal conversation  plaintiff's  wife  cannot  testify  for  him,  but  may  for  the 
defendant,  e.xcept  that  she  cannot  disclose  confidential  communications 
between  herself  and  her  husband  without  his  consent.     Code  Civ.  Pro. 


198  A  DIGEST  OF  [Part  III. 


Article  no. 

COMMUNICATIONS  DURING  MARRIAGE. 

No  husband  is  compellable  to  disclose  any  communication 
made  to  him  by  his  wife  during  the  marriage,  and  no  wife  is 
compellable  to  disclose  any  communication  made  to  her  by  her 
husband  during  the  marriage.' 

Article  hi.* 

judges  and  advocates  privileged  as  to  certain 
questions. 

It  is  doubtful  whether  a  judge  is  compellable  to  testify  as  to 
anything  which  came  to  his  knowledge  in  court  as  such  judge.'' 

'  See  Note  XLII. 
$  831.  In  other  cases  they  may  testify,  but  neither  can  disclose  confiden- 
tial communications  without  the  consent  of  the  other,  if  living.  Id.  ^^ 
828,  831.  So  in  Massachusetts  they  may  testify,  except  as  to  private  con- 
versations with  each  other.  Pub.  St.,  c.  169,  6  18  ;  Rayncs  v.  Btntuit,  114 
Mass.  424.  As  to  other  States,  see  Matthews  v.  Yerex,  48  Mich.  361 ; 
Grecnawalt  v.  McEnellcy,  85  Pa.  St.  352  ;  Howard  v.  Biower,  37  O.  St. 
402 ;  People  v.  La7!gtree,  64  Cal.  256 ;  Wood  v.  Chetwood,  27  X.  J.  Eq. 
311 ;  Wh.  Ev.  i.  $  431  ;  Bishop,  M.  &  D.  ii.  H  282-285.  But  statutes  re- 
moving the  disability  of  parties  to  testify  do  not  enable  husband  and  wife 
to  be  witnesses  ;  there  must  be  special  acts  for  this  purpose.  Lucas  v. 
Brooks,  18  Wall.  436  ;  Wh.  Ev.  i.  §  430.] 

'  16  &  17  Vict.  c.  83,  s.  3.  It  is  doubtful  whether  this  would  apply  to 
a  widower  or  divorced  person,  questioned  after  the  dissolution  of  the 
marriage  as  to  what  had  been  communicated  to  him  whilst  it  lasted.  [So 
under  modem  statutes  in  this  country,  it  is  the  general  rule  that  confi- 
dential communications  between  husband  and  wife  cannot  be  disclosed 
by  either.  See  Art.  109,  note.  As  to  the  nature  of  such  communica- 
tions, see  Wood  v.  Chetwood,  27  N.  J.  Eq.  311  ;  Fay  v.  Guytion,  131  Mass. 
31  ;  Bean  v.  Green,  33  O.  St  444 ;  Perry  v.  Randall,  83  Ind.  143  ; 
Schmied  v.  Frand,  86  Ind.  250  ;  U.  S.  v.  Guiteau,  1  Mackey,  498.  That 
a  person  overhearing  their  conversations  may  testify,  see  Comm.  v. 
Griffin,  no  Mass.  181  ;  State  v.  Hoyt,  47  Ct  518  ;  contra,  Campbell  v. 
Chace,  12  R.  I.  333.] 

'  R.  V.  Gazard,  8  C.  &  P.  595.  [A  judge  sitting  alone  to  try  a  cause 
cannot  be  a  witness  on  the  same  trial ;  nor  when  he  sits  with  others  and 


Chap.  XV.  1       THE  LAW  OF  EVIDENCE.  199 

It  seems  that  a  barrister  cannot  be  compelled  to  testify  as  to 
what  he  said  in  court  in  his  character  of  a  barrister." 


his  presence  is  necessary  to  a  duly  organized  court,  can  he  properly  testify 
in  the  cause  on  trial.  Dabney  v.  Mitchell,  66  Ala.  495  ;  People  v.  Miller,  2 
Park.  Cr.  197  ;  see  McMillen  v.  AndrcvM,  lo  O.  St.  112.  But  if  he  docs 
testify  when  he  sits  with  others,  and  no  exception  is  taken  thereto,  the 
judgment  of  the  court  is  not   invalidated.     People  v.  Dohrintr,  59  N.  Y. 

374.  These  rules  apply  also  to  other  judicial  officers,  as  referees,  etc. 
Morss  V.  Morss,  11  Barb.  510;  see  Gr.  Ev.  i.  ^^  249,  364.  A  judge's  tes- 
timony as  to  the  grounds  of  a  former  decision  rendered  by  him  has  also 
been  excluded.  Agan  v.  Hey,  30  Hun,  591  ;  but  see  Supples  v.  Cannon, 
44  Ct.  430  ;    Taylors.  Larkin,  12  Mo.  103. 

A  justice  may  be  a  witness  to  verify  his  minutes  in  proving  the  testi- 
mony of  a  witness  in  a  former  case  tried  before  him  (Huffy.  Bennett, 
4  Sandf.  120,  6  N.  Y.  337  ;  Zitike  v.  Goldbergs  38  Wis.  216;  Welcome  v. 
Batchelder,  23  Me.  85  ;  Schall  v.  Miller,  5  Whart.  156)  ;  or  in  proving  the 
proceedings  before  him  or  the  judgment  rendered  {Pollock  v.  Hoag,  4 
E.  D.  Sm.  473  ;  Boomer  v.  f.aine,  10  Wend.  526  ;  McGrath  v.  Seagrai'e, 
2  Allen,  443 ;  Hibbs  v.  Blair,  14  Pa.  St.  413)  ;  but  his  entries,  not 
so  verified,  are  not  good  evidence.  Schafer  v.  Schafer,  93  Ind.  586, 
So  a  justice  may  testify  upon  what  papers  process  was  issued  by  him 
(Heyward's  Case,  i  Sandf.  701),  or  as  to  various  collateral  matters. 
Highberger  v.  Stiffler,  21  Md.  238 ;  yackson  v.  Humphrey,  i  Johns. 
498. 

Auditors,  arbitrators,  etc.,  may  not  give  testimony  to  impeach  their 
report  or  award.  Packard  v.  Reynolds,  100  Mass.  153  ;  Ellison  v.  Weath- 
ers, 78  Mo.  IIS  ;  see  Briggs  v.  Smith,  20  Barb.  409;  aliter,  in  cases  of 
fraud,  Withington  v.  Warren,  10  Met.  431  ;  Pulliam  v.  Penseneaii,  33  111. 

375.  But  arbitrators  may  testify  as  to  matters  openly  occurring  before 
them  on  the  hearing,  including  admissions  of  a  party,  etc.  {Calvert  v. 
Friebus,  48  Md.  44  ;  Graham  v.  Graham,  9  Pa.  St.  254)  ;  or  in  support  or 
explanation  of  their  award,  or  as  to  collateral  facts.  Gr.  Ev.  ii.  $  78  ; 
Wh.  Ev.  i.  ^  599;  Converse  v.  Colton,  49  Pa.  St.  346;  Halls.  Huse,  10 
Gray,  99.] 

'  Curry  v.  Walter,  i  Esp.  456.  [.\  person  is  a  competent  witness  in  a 
case  in  which  he  is  acting  as  attorney  or  counsel  ;  but  the  practice  is  not 
approved  and  should  only  be  resorted  to  in  case  of  necessity.  Gr.  Ev. 
••  $  364  ;  Little  v.  McKeon,  i  Sandf.  607;  Follansbee  v.  Walker,  72  Pa.  St. 
228;  Potter  V.  Ware,  1  Cush.  519;  Branson  v.  Caruthers,  49  Cal.  374; 
A/organ  v.  Roberts,  38  111.  65.] 


A  DIGEST  OF  [Part  III. 


Article  112. 

evidence  as  to  affairs  of  state. 

No  one  can  be  compelled  to  give  evidence  relating  to  any 
affairs  of  State,  or  as  to  official  communications  between  public 
officers  upon  public  affairs,  except  with  the  permission  of  the 
officer  at  the  head  of  the  department  concerned,'  or  to  give 
evidence  of  what  took  place  in  either  House  of  Parliament, 
without  the  leave  of  the  House,  though  he  may  state  that  a  par- 
ticular person  acted  as  Speaker.* 

Article  113. 
information  as  to  commission  of  offences. 

In  cases  in  which  the  government  is  immediately  concerned 
no  witness  can  be  compelled  to  answer  any  question,  the 
answer  to  which  would  tend  to  discover  the  names  of  persons 
by  or  to  whom  information  was  given  as  to  the  commission 
of  offences. 

In  ordinary  criminal  prosecutions  it  is  for  the  judge  to  decide 
whether  the  permission  of  any  such  question  would  or  would 
not,  under  the  circumstances  of  the  particular  case,  be  injuri- 
ous to  the  administration  of  justice.^ 


'  Beatson  v.  Skene,  5  H.  &  N.  838.  [So  in  this  country,  the  President, 
the  governors  of  the  several  States,  and  their  cabinet  officers,  are  not 
bound  to  produce  papers  or  disclose  information  committed  to  them,  in  a 
judicial  inquiry,  when  in  their  own  judgment  the  disclosure  would  on  pub- 
lic grounds  be  inexpedient.  Appeal  of  Hartranft,  85  Pa.  St.  433  ;  Thomp- 
son V.  German,  etc.  R.  Co.,  22  N.  J.  Eq.  iii  ;  Totten  v.  U.  S.,  92  U.  S.  105; 
Gr.  Ev.  i.  §  2.i;i.  Nor  without  permission  of  government  can  other  per- 
sons be  compelled  to  make  such  disclosures.  See  Worthington  v.  Scrib- 
ner,  109  Mass.  487.] 

3  Chubb  V.  Salomons,  3  Car.  &  Kir.  77  ;  Plunkett  v.  Cobbett,  5  Esp.  136. 

3  R.  V.  Hardy,  24  S.  T.  811  ;  A.  G.  v.  Bryant,  15  M.  &  W.  169  ;  R.  v. 
Richardson,  3  F.  &  F.  693.  [Gr.  Ev.  i.  $  250  ;  i/.  S.  v.  Moses,  4  Wash.  C. 
C.  726 ;  State  v.  Soper,  16  Me.  293 ;    Worthington  v.  Scribner,  109  Mass, 


Chap.  XV.]       THE  LAW  OF  EVIDENCE.  201 

Article  114. 

competency  of  jurors. 

A  petty  juror  may  not '  and  it  is  doubtful  whether  a  grand 
juror  may^  give  evidence  as  to  what  passed  between  the  jury- 


487.  This  last  case  maintains  that  the  assent  of  the  government  is  re- 
quired before  a  witness  can  disclose  such  information,  and  R.  v.  Richard- 
son is  questioned.] 

'  Vaise  v.  Delaval,  I   T.  R.  ii  ;    Burgess  v.  Langley,  5  M.   &   G.  722. 

[Gr.  Ev.  i.  ^  252  a  ;    Woodivard  v.  Leavitt,  107  Mass.  453  ;  Dalrymple  v. 

Williams,  63  N.  Y.  361;  State  v.  Pike,  65  Me.  iii  ;  Hutchinson  v.  Con- 
sinners'  Coal  Co.,  36  N.  J.  L.  24.  It  is  a  general  rule  that  the  testimony  of 
jurors  is  not  admissible  to  impeach  their  own  verdict.  Bridgewater  v. 
Plymouth,  97  Mass.  382  ;  Williams  v.  Montgomery,  60  N.  Y.  648  ;  Meade 
V.  Smith,  16  Ct.  346  ;  People  v.  Doyell,  48  Gal.  85  ;  Brown  v.  Cole,  45  la. 
601 ;  for  a  full  collection  of  cases,  see  24  Am.  Dec.  475;  12  Id.  142.  But 
their  testimony  has  been  received  to  support  or  establish  their  verdict,  or 
to  exculpate  them  from  alleged  misconduct  {Peck  v.  Breiver,  48  111.  54  ; 
People  V.  Hunt,  59  Cal.  430 ;  Clement  v.  Spear,  56  Vt.  401  ;  Hutchinson  v. 
Consumers'  Coal  Co.,  supra);  or  in  denial  or  explanation  of  acts  and 
declarations  made  by  them  outside  of  the  jury  room,  which  are  relied  upon 
to  show  bias  or  prejudice  (  Woodward  v.  Leavitt,  supra);  or  to  show  the 
identity  of  the  subject  matter  in  different  actions,  when  this  is  not  dis- 
closed by  the  record  (Stapleton  v.  King,  40  la.  278  ;  Follansbee  v.  Walker, 
74  Pa.  St.  306  ;  see  Packet  Co.  v.  Sickles,  5  Wall.  580);  or  to  show  a  juror's 
acts  while  separated  from  his  fellows  [Heffron  v.  Gallupe,  55  Me.  563);  or 
to  show  what  testimony  was  given  on  a  former  trial  (Hewett  v.  Chapma?/, 
49  Mich.  4);  and  even  in  some  States  to  impeach  a  verdict  for  grounds 
not  essentially  inherent  therein.  Curtis  v.  Chicago,  etc.  R.  Co.,  32  la.  515  ; 
Perry  v.  Bailey,  12  Kan.  539.  A  juror  may  be  a  witness  upon  the  same 
trial  in  which  he  is  acting  as  juror.  Howser  v.  Comm.,  51  Pa.  St.  332; 
People  V.  Dohring,  59  N.  Y.  374,  378.  ] 

'  I  Ph.  Ev.  140  ;  T.  E.  s.  863.  [It  is  the  general  rule  in  this  country, 
that  a  grand  juror  cannot  give  such  testimony.  Gr.  Ev.  i.  §  252  ;  Wli. 
Ev.  i.  $  6or  ;  People  v.  Hulbut,  4  Den.  133  ;  State  v.  Fassett,  16  Ct.  458  ;  • 
N.  Y.  Code  Cr.  Pro.  %  265;  Mass.  Pub.  St.,  c.  213,  $  13.  But  grand 
jurors,  it  is  now  generally  held,  may  testify  whether  a  particular  person 
did  or  did  not  give  evidence  before  them  {Comm.  v.  /////,  11  Cush.  137)  ; 
or  who  was  the  prosecutor  {Huidekoper  v.  Cotton,  3  Watts,  56);  or  in  im- 


A  DIGEST  OF  [Part  III. 


men  in  the  discharge  of  their  duties.  It  is  also  doubtful 
whether  a  grand  juror  may  give  evidence  as  to  what  any  witness 
said  when  examined  before  the  grand  jury. 

Article  115.* 

professional  communications. 

No  legal  adviser  is  permitted,  whether  during  or  after  the 
termination  of  his  employment  as  such,  unless  with  his  client's 
express  consent,  to  disclose  any  communication,  oral  or  docu- 
mentary, made  to  him  as  such  legal  adviser,  by  or  on  behalf  of 
his  client,  during,  in  the  course,  and  for  the  purpose  of  his 
employment,  whether  in  reference  to  any  matter  as  to  which  a 
dispute  has  arisen  or  otherwise,  or  to  disclose  any  advice  given 
by  him  to  his  client  during,  in  the  course,  and  for  the  purpose 
of  such  employment.  It  is  immaterial  whether  the  client  is  or 
is  not  a  party  to  the  action  in  which  the  question  is  put  to  the 
legal  adviser.' 


*  See  Note  XLIIL 
peachment  of  a  witness's  credibility,  may  disclose  his  testimony  before 
them,  in  order  to  show  that  it  differed  from  that  given  before  the  petit 
jury  {Comm.  v.  Mead,  12  Gray,  167  ;  State  v.  Benner,  64  Me.  267  ;  State  v. 
Wood,  53  N.  H.  484  ;  Gordon  v.  Comm.,  92  Pa.  St.  216;  Burdick  v.  Hunt, 
43  Ind.  381 ;  N.  Y.  Code  Cr.  Pro.  %  266)  ;  or  to  show  a  witness's  perjury, 
confessions,  etc.  Id.  ;  U.  S.  v.  jVc^ro  Charles,  2  Cr.  C.  C.  76 ;  Bishop 
Cr.  Pr.  i.  $$  857,  858  (3d  ed.).  It  is  also  held  in  some  States  that  in  a 
direct  proceeding  to  set  aside  or  quash  an  indictment,  the  testimony  of 
the  grand  jurors  will  be  received,  that  twelve  of  their  number  did  not  con- 
cur m  finding  it  {Low's  Case,  4  Me.  439  ;  People  v.  Shattuck,  6  Abb.  N.  C. 
33  ;  and  so  as  to  other  grounds  for  quashing,  see  U.  S.  v.  Farrington,  5 
F.  R.  343)  ;  but  not,  it  seems,  in  a  collateral  proceeding  {People  v.  Hulbut, 
supra);  but  the  cases  are  in  conflict  on  this  point.  See  16  Am.  Dec.  281. 
Some  States  apply  a  still  more  liberal  rule  as  to  admitting  the  evidence 
of  grand  jurors.  Clanton  v.  State,  13  Te.x.  App.  139  ;  cf.  U.  S.  v.  Farririg- 
to?t,  supra.] 

■  [Gr.  Ev.  i.  §§  237-246 ;  Wh.  Ev.  i.  ^  576-594  ;  N.  Y.  Code  Civ.  Pro. 
$  83s  ;  Bacon  v.  Frisbie,  80  N.  Y.  394;  Root  v.  Wright,  84  Id.  72;  Htgbee 
V.  Dresser,  103  Mass.  523 ;   Conn.  Life  Ins.  Co.  v.  Schaefer,  94  U.  S.  457 ; 


Chap.  XV.]      THE  LAW  OF  EVIDENCE.  203 

This  article  does  not  extend  to — 

(i)  Any  such  communication  as  aforesaid  made  in  further- 
ance of  any  criminal  purpose  ;  ' 

(2)  Any  fact  observed  by  any  legal  adviser,  in  the  course  of 
his  employment  as  such,  showing  that  any  crime  or  fraud  has 
been  committed  since  the  commencement  of  his  employment, 
whether  his  attention  was  directed  to  such  fact  by  or  on  behalf 
of  his  client  or  not  ;  ^ 

(3)  Any  fact  with  which  such  legal  adviser  became  acquainted 
otherwise  than  in  his  character  as  such.^    The  expression  "legal 


Burnham  Y.  Roberts,  70  111.  19 ;  Earle  v.  Grout,  46  Vt.  113  ;  McLellart  v. 
Longfellow,  32  Me.  494 ;  Cross  v.  Riggins,  50  Mo.  335.  The  client's 
waiver  may  in  some  cases  be  implied,  as  well  as  express.  Blackburn  v. 
Crawfords ,  3  Wall.  175,  192.  But  his  becoming  himself  a  witness  in  the 
case  does  not  amount  to  a  waiver.  Montgomery  v.  Pickering,  116  Mass. 
227;  see  Duttenhofer  v.  State,  34  O.  St.  91.  After  the  client's  death 
his  e.xecutor  or  administrator  cannot  waive.  Gr.  Ev.  i.  §  243  ;  IVestover 
V.  /^tna  Life  Ins.  Co.,  99  N.  Y.  56.] 

'  Follett  V.  yefferyes,  i  Sim.  (N.  S. )  17;  Charlton  v.  Coombes,  32  L.  J. 
Ch.  284 ;  4  Giff.  372.  These  cases  put  the  rule  on  the  principle,  that  the 
furtherance  of  a  criminal  purpose  can  never  be  part  of  a  legal  adviser's 
business.  As  soon  as  a  legal  adviser  takes  part  in  preparing  for  a  crime, 
he  ceases  to  act  as  a  lawyer  and  becomes  a  criminal — a  conspirator  or 
accessory,  as  the  case  may  be.  [People  v.  Blakely,  4  Park.  Cr.  176  ; 
Dudley  v.  Beck,  3  Wis.  274.  The  English  decisions  supra  include  cases  of 
fraud  within  this  exception  ;  but  see  Bank  of  Utica  v.  Mersereau,  3  Barb. 
Ch.  528,  598  ;  cf.  Higbec  v.  Dresser,  103  Mass.  523  ;  In  re  Chapman,  ttj 
Hun,  573.] 

2  [See  Illustration  {a).\ 

^  [Gr.  Ev.  i.  %%  244,  245  ;  Wh.  Ev.  i.  %  588,  589  ;  as,  e.g.,  facts  which 
he  learned  before  he  became  legal  adviser,  or  after  the  relation  ceased  ; 
or  while  he  was  acting  as  friend,  not  as  attorney  {Coon  v.  Swan,  30  Vt. 
6)  ;  so  as  to  communications  not  relating  to  the  professional  employment. 
Carroll  v.  Sprague,  59  Cal.  655  ;  State  v.  Mcwhertcr,  46  la.  88.  So  an 
attorney  may  be  required  to  testify  as  to  many  collateral  matters ;  as  the 
name  of  his  client  l^Harrima?i  v.  Jones,  58  N.  H.  328),  or  his  residence 
(.-llden  V.  Goddard,  y^  Me.  345),  or  his  signature  {Broivn  v.  Je^vett,  120 
Mass.  215)  ;  or  that  in  collecting  a  claim  he  acted  for  his  client  {Mulford 
y.  Mi4ller,  5  Abb.  Dec.  330)  ;  or  that  he  has  the  client's  papers  in  his 


204  A  DIGEST  OF  [Part  III. 

adviser"  includes  barristers  and  solicitors,'  their  clerks/  and 
interpreters  ■  between  them  and  their  clients.  It  does  not  in- 
clude officers  of  a  corporation  through  whom  the  corporation 
has  elected  to  make  statements.' 

Illustrations. 

(a)  A,  being  charged  with  embezzlement,  retains  B,  a  barrister,  to  de- 
fend him.  In  the  course  of  the  proceedings,  B  observes  that  an  entry- 
has  been  made  in  A's  account  book,  charging  A  with  the  sum  said  to 
have  been  embezzled,  which  entry  was  not  in  the  book  at  the  commence- 
ment of  B's  employment. 

This  being  a  fact  observed  by  B  in  the  course  of  his  employment, 
showing  that  a  fraud  has  been  committed  since  the  commencement  of 
the  proceedings,  is  not  protected  from  disclosure  in  a  subsequent  action 


hands  (see  Art.  119)  ;  so  as  to  communications  which  are  not  of  a  private 
nature,  or  which  have  ceased  to  be  private  (Sttow  v.  Gould,  74  Me.  540), 
and  many  like  matters.  See  p.  205,  n.  i,post;  Comm.  v.  Goddard,  14 
Gray,  402  ;   Crosby  v.  Berger,  11  Pai.  377. 

A  communication  made  to  counsel  by  one  party  to  a  controversy  while 
the  others  are  present  is  not  privileged  from  disclosure  in  a  subsequent 
suit  between  such  parties  themselves.  Gulick  v.  Gulkk,  38  N.  J.  Eq. 
402  ;  Britton  v.  Lorenz,  45  N.  Y.  51  ;  see  Root  v.    Wright,  84  N.  Y.  72.] 

'  Wilson  v.  Has  tall,  4  T.  R.  753.  As  to  interpreters,  lb.  756.  [All 
attorneys  and  counsellors  are  included  in  this  country.] 

2  Taylor  v.  Foster,  2  C.  &  P.  195  ;  Foote  v.  Hayne,  I  C.  &  P.  545.  Quaere, 
whether  licensed  conveyancers  are  within  the  rule?  Parke  B. ,  in  Tur- 
quand  v.  Knight,  7  M.  &  W.  100,  thought  not.  Special  pleaders  would 
seem  to  be  on  the  same  footing.  [Gr.  Ev.  i.  ^  239  ;  as  to  clerks,  see  Sib- 
ley v.  Waffle,  16  N.  Y.  180  ;  yacksoti  v.  French,  3  Wend.  337  ;  but  a  law- 
student  to  whom  a  communication  is  made,  not  being  the  clerk  or 
agent  of  the  attorney,  may  be  required  to  testify  as  to  such  communica- 
tion {Barnes  v.  Harris,  7  Cush.  576  ;  Holman  v.  Kimball,  22  Vt.  555),  and 
so  may  a  person  who  overhears  a  client's  statements  to  his  lawyer.  Hoy 
V.  Morris,  13  Gray,  519  ;  Gary  v.  White,  59  N.  Y.  336,  339  ;  Goddard  v. 
Gardner,  28  Ct.  172.  A  lawyer  simply  employed  to  draft  deeds  or  other 
papers  without  giving  legal  advice  is  not  generally  within  the  rule  of 
privilege.  Smith  v.  Long,  106  111.  485  ;  Borum  v.  Fotits,  15  Ind.  50  ;  Hat- 
ton  v.  Robinson,  14  Pick.  416  ;  but  see  Linthicitm  v.  Remington,  5  Cr.  C. 
C.  546.] 

'  Mayor  of  Swansea  v,  Quirk,  L.  R.  5  C.  P.  D.  106, 


Chap.  XV.]      THE  LAW  OF  EVIDENCE.  205 

by  A  against  the  prosecutor  in  the  original  case  for  malicious  prosecu- 
tion.' 

{J>)  A  retains  B,  an  attorney,  to  prosecute  C  (whose  property  he  had 
fraudulently  acquired)  for  murder,  and  says,  "It  is  not  proper  for  me  to 
appear  in  the  prosecution  for  fear  of  its  hurting  me  in  the  cause  coming 
on  between  myself  and  him  ;  but  I  do  not  care  if  I  give ;if  10,000  to  get 
him  hanged,  for  then  I  shall  be  easy  in  my  title  and  estate."  This  com- 
munication is  not  privileged.'^ 

Article  116. 

confidential  communications  with  legal  advisers. 

No  one  can  be  compelled  to  disclose  to  the  Court  any  com- 
munication between  himself  and  his  legal  adviser,  which  his 
legal  adviser  could  not  disclose  without  his  permission,  although 
it  may  have  been  made  before  any  dispute  arose  as  to  the  mat- 
ter referred  to.' 

Article  117.* 
clergymen  and  medical  men. 
Medical  men  *  and  (probably)  clergymen  may  be  compelled 

*  See  Note  XLIV. 
'  Brown  v.  Foster,  I  H.  &  N.  736.  [This  case  was  so  decided  because 
the  fact  in  question  was  not  information  communicated  by  the  client,  but 
knowledge  which  counsel  acquired  by  his  own  observation.  For  a  like 
rule,  see  Patten  v.  Moor,  29  N.  H.  163  ;  Daniel  v .  Daniel ,  39  Pa.  St.  191  ; 
Hebbard  v.  Haughian,  70  N.  Y.  54.] 

2  Anneslcy  v.  Anglesea,  17  S.  T.  1223-4. 

3  Afinetw.  Morgan,  L.  R.  8  Ch.  App.  361,  reviewing  all  the  cases,  and 
adopting  the  explanation  given  in  Pearse  v.  Pcarse,  i  De  G.  &  S.  18-31, 
of  Radelifft'  v.  Fursman,  2  Br.  P.  C.  514.  [This  rule  applies  though  par-  . 
ties  are  now  competent  witnesses.  Hcmenway  v.  Smitk,  28  Vt.  701  ;  Bark- 
er V.  Kiihn,  38  la.  392  ;  Bigler  v.  Reyher,  43  Ind.  112  ;  Duttcnhofcr  v. 
State,  34  O.  St.  91  ;  State  v.  White,  19  Kan.  445  ;  Carnes  v.  Piatt,  15  Abb. 
Pr.  (N.  S.)  337.  But  in  Massachusetts  it  is  held  that  a  party  who  offers 
himself  as  a  witness  at  a  trial  cannot  refuse  to  disclose  his  conversations 
with  his  counsel.  Inhab.  of  IVobum  v.  Henshaw,  loi  Mass.  193.  That 
client  may  waive  the  privilege,  see  Passmore  v.  Passmore's  Estate,  50 
Mich.  626.] 

♦  Duchess  of  Kingston's  Case,  20  S.  T.  572-3.  As  to  clergymen,  see 
Note  XLIV. 


2o6  A  DIGEST  OF  [Part  III. 

to  disclose  communications  made  to  them  in  professional  con- 
fidence.' 

Article  ii8. 
production  of  title-deeds  of  witness  not  a  party. 

No  witness  who  is  not  a  party  to  a  suit  can  be  compelled  to 
produce  his  title-deeds  to  any  property,*  or  any  document  the 
production  of  which  might  tend  to  criminate  him,  or  expose 


'  [This  is  the  general  rule  of  the  common  law  (Gr.  Ev.  i.  §  247).  But 
in  a  number  of  the  States  of  this  country,  a  different  rule  has  been  es- 
tablished by  statute.  In  New  York,  e.^.,  it  is  provided  that  a  clergyman 
shall  not  be  allowed  to  disclose  a  confession  made  to  him  in  his  profes- 
sional character  in  the  course  of  discipline  enjoined  by  the  rules  or  prac- 
tice of  his  religious  body  (N.  Y.  Code  Civ.  Pro.  ij  833  ;  see  People  v.  Gates, 
13  Wend.  311)  ;  and  that  a  person  duly  authorized  to  practice  physic  or 
surgery  shall  not  be  allowed  to  disclose  any  information  which  he  ac- 
quired in  attending  a  patient  in  a  professional  capacity,  and  which  was 
necessary  to  enable  him  to  act  in  that  capacity  (Code  Civ.  Pro.  §  834).  But 
this  privilege  may  be  waived  by  the  person  confessing  or  the  patient.  This 
rule  as  to  physicians  applies  to  "  information  "  obtained  by  them  by  their 
own  observation  or  the  statements  of  others,  as  well  as  to  communications 
from  the  patient  himself.  Edington  v.  Life  Ins.  Co.,  67  N.  Y.  185  ;  Grat- 
tan  V.  Life  Ins.  Co.,  80  N.  Y.  281  ;  S.  P.  Gartside  v.  Conn.  Ins.  Co.,  76 
Mo.  446 ;  Briggs  v.  Briggs,  20  Mich.  34.  But  it  does  not  prevent  a  phy- 
sician from  testifying  upon  a  trial  for  murder  as  to  the  condition  of  the 
person  injured  whom  he  attended  before  death  ensued  {Pierson  v.  People, 
79  N.  Y.  424)  ;  nor  in  probate  proceedings  does  it  exclude  the  testimony 
of  physicians  to  show  the  condition  of  the  decedent  as  bearing  upon  his 
testamentary  capacity,  his  representatives  waiving  the  privilege.  Fraser  v. 
yennison,  42  Mich.  206;  but  see  Westover  v.  ^tna  Life  Ins.  Co. ,  99  N.  Y.  56. 

Similar  statutes  have  been  passed  in  Michigan,  Wisconsin,  Indiana, 
Iowa,  Missouri,  California,  Oregon,  etc.  See  Conti.  Ins.  Co.  v.  Union 
Trust  Co.,  112  U.  S.  250  ;  Guptillv,  Verback,  58  la.  98  ;  as  to  clergymen, 
see  Gillooley  v.  State,  58  Ind.  182.] 

2  Pickering  v.  Noyes,  i  B.  &  C.  263  ;  Adams  v.  Lloyd,  3  H.  &  N.  351. 
[It  is  a  rule  of  chancery  practice  that  a  party  shall  not  be  compelled  to 
make  discovery  of  his  title  deeds  when  they  simply  support  his  own 
title,  but  only  when  they  support  the  title  of  his  adversary  ;  and  a  similar 
rule  applies  to  other  documents.  Story,  Eq.  Jur.,  ii.,  §  1490  ;  Thompson 
V.  Engle,  3  Gr.  Ch.  (N.  J.)  271 ;  Cullison  v.  Bossom,  1  Md.  Ch.  95.  The 
?ame  rule  is  applied  in  some  States  under  modern  statutes  allowing 


Chap.  XV.]      THE  LAW  OF  EVIDENCE.  207 

him  to  any  penalty  or  forfeiture  ; '  but  a  witness  is  not  entitled 
to  refuse  to  produce  a  document  in  his  possession  only  because 
its  production  may  expose  him  to  a  civil  action/  or  because  he 
has  a  lien  upon  it.'  ^ 

the  discovery  and  inspection  of  documents.  Meak'mgs  v.  Cromwell,  i 
Sandf.  698;  Andrews  v.  Townshend,  i6  J.  &  Sp.  162;  Mass.  Pub.  St., 
c.  167,  s.  56 ;  Wilson  v.  Webber,  2  Gray,  558  ;  N.  H.  Gen.  Laws,  c.  228, 
s.  14  (ed.  1878)  ;  but  see  Adams  v.  Porter,  i  Cush.  170. 

A  person  not  a  party  to  an  action  may  by  subpcena  duces  tecum  be  re- 
quired to  produce  his  private  papers  in  evidence  that  are  relevant  to  the 
issue  (Wh.  Ev.  i.  ^  537  ;  Burnham  v.  Mprrissey,  14  Gray,  226,  240  ;  In  re 
Dunn,  9  Mo.  App.  255;  of.  Davenbagh  v.  M' Kinnie,  5  Cow.  27  (deed)  ; 
Lane  v.  Cole,  12  Barb.  680  (docket  book)  ;  Bonesteel  v.  Lynde,  8  How.  Pr. 
226,  352  (party  subpoenaed  to  produce  lease  and  inventory)),  if  they  do 
not  tend  to  criminate  him  or  expose  him  to  a  penalty  or  forfeiture.  But 
the  court  may  relieve  him  from  the  obligation  of  giving  them  in  evidence 
(though  he  must  bring  them  into  court),  if  this  would  be  prejudicial  to 
his  rights  and  interests  ;  of  this  the  court  is  to  judge  upon  inspection  (Gr. 
Ev.  i.  $  246  ;  Mitchell's  Case,  12  Abb.  Pr.  249,  259  ;  In  re  O'  Toole,  I 
Tucker,  39  ;  Bull  v.  Loveland,  10  Pick.  9  ;  so  now  as  to  2i party,  Bonesteel 
V.  Lynde,  8  How.  Pr.  226,  233  ;  Champlin  v.  Stoddart,  17  W.  D.  76  ;  of. 
Cross  V.  jfohnson,  30  Ark.  396)  ;  and  perhaps  the  rule  in  equity  supra 
would  be  applied  upon  a  subpcena  both  in  law  and  equity.] 

'  Whitaker  v.  Izod^  2  Tau.  115  ;  \Byass  v.  Sullivan,  21  How.  Pr.  50; 
so  as  to  discovery  by  z.party,  Johnson  v.  Donaldson,  18  Blatch.  287.] 

s  Doe  V.  Date,  3  Q.  B.  609,  618  ;  [Wh.  Ev.  i.  §  537  ;  Bull  v.  Love- 
land,  ID  Pick.  9.] 

3  Hope  V.  Liddell,  7  De  G.  M.  &  G.  331  ;  Hunter  v.  Leathley,  10  B. 
&  C.  858  ;  Brassington  v.  Brassington,  i  Sim.  &  Stu.  455.  It  has  been 
doubted  whether  production  may  not  be  refused  on  the  ground  of  a 
lien  as  against  the  party  requiring  the  production.  This  is  suggested 
in  Brassington  v.  Brassington^  and  was  acted  upon  by  Lord  Denman 
in  Kemp  v.  King^  2  Mo.  &  Ro.  437  ;  but  it  seems  to  be  opposed  to 
Hunter  v.  Leathley,  in  which  a  broker  who  had  a  lien  on  a  policy  for 
premiums  advanced  was  compelled  to  produce  it  in  an  action  against 
the  underwriter  by  the  assured  who  had  created  the  lien.  See  Ley  v. 
Barloiu  (Judgt.  of  Parke,  B.)  I  E.\.  801.  [See  Morley  v.  Green,  11  Pai. 
240;  Bull  v.  Loveland,   10  Pick.  9.] 

<[Mr.  Stephen  ends  Art.  118  as  follows  :  "No  bank  is  compellable  to 
produce  the  books  of  such  bank,  except  in  the  case  provided  for  in  Art. 
37.    (42  &  43  Vict.  c.  11)."     See  note  XLIX.] 


2o8  A  DIGEST  OF  [Part  III. 


Article  119. 

production    of   documents  which    another    person, 
having  possession,  could  refuse  to  produce. 

No  solicitor,'  trustee,  or  mortgagee  can  be  compelled  to  pro- 
duce (except  for  the  purpose  of  identification)  documents  in 
his  possession  as  such,  which  his  client,  cestui  que  trust,  or 
mortgagor  would  be  entitled  to  refuse  to  produce  if  they  were 
in  his  possession  ;  nor  can  any  one  who  is  entitled  to  refuse  to 
produce  a  document  be  compelled  to  give  oral  evidence  of  its 
contents.' 

'  Volant  V.  Soyer,  13  C.  B.  231  ;  Phelps  v.  Prerv,  3  E.  &  B.  431. 

2  Davies  v.  Waters,  9  M.  &  W.  608  ;  Fezo  v.  Gufpy,  13  Beav.  454. 
[Formerly  when  a  party  to  a  suit  could  not  be  required  to  give  evidence, 
his  legal  adviser  could  likewise  not  be  compelled  to  produce  in  evidence 
a  deed  or  other  document  entrusted  to  him  by  his  client,  nor  to  disclose 
its  contents.  Notice  to  produce  might  be  given  him  (see  Art.  72,  ante), 
and  he  might  be  examined  as  to  the  existence  of  the  paper,  and  as  to  its 
being  in  his  possession,  so  as  to  enable  the  other  party  to  give  secondary 
evidence  of  its  contents  (Gr.  Ev.  i.  ^  241  ;  Mitchell's  Case,  12  Abb.  Pr. 
249,  258  ;  Coveney  v.  Tannahill,  i  Hill,  '^■^  ;  Diirkee  v.  Leland,  4  Vt.  612  ; 
Anon.,  8  Mass.  370;  Lessee  of  Rhodes  v.  Selin,  4  Wash.  C.  C.  715)  ;  and 
the  same  rule  was  applied  to  the  agent  of  a  party,  as,  e.g.,  an  officer  of  a 
corporation.  Bank  of  Utica  v.  Hillard,  5  Cow.  419  ;  Westcott  v.  Atlantic 
Co. ,  3  Met.  282.  In  equity,  however,  it  has  been  the  rule  that  a  party 
might,  in  some  cases,  be  required  to  make  discovery  of  his  deeds  and 
papers  (see  Art.  118,  note  2),  and,  therefore,  that  his  attorney  would  be 
bound  to  produce  them,  if  they  were  in  the  latter's  possession.  IVakeman 
v.  Bailey,  3  Barb.  Ch.  482.  And  now  that  by  modern  statutes  parties 
may  be  subpoenaed  (see  Art.  72,  ante].,  it  is  in  like  manner  declared  that 
whatever  papers  a  party  must  produce,  his  attorney  must  produce  if  he 
has  them.  Mitcheirs  Case,  supra;  Andrews  v.  Ohio,  etc.  R.  Co.,  14  Ind. 
169  ;  Steeds.  Cruise,  70  Ga.  168  ;  cf.  Moats  v.Rymer,  18  W.  Va.  642.  A 
client  cannot  combine  with  his  attorney  to  keep  papers  from  being  pro- 
duced by  putting  them  in  the  latter's  possession.  People  v.  Sheriff,  29 
Barb.  622.  But  papers  which  are  professional  communications  are  still 
protected.  Mitchell's  Case,  supra  ;  Mallory  v.  Benjamin,  9  How.  Pr. 
419;  Hubbell  V.  Jndd  Oil  Co.,  19  Alb.  L.  J.  97  ;  and  see  Art.  118,  note  2  ; 
cf.  Pulford's  Appeal,  48  Ct.  247. 

The  agents  of  a  telegraph  company  are  bound  to  produce  telegraphic 
messages  upon  a  subpcena  duces  tecum.  Ex  parte  Broivn,  72  Mo.  83  ;  State  v. 
Litchfield,  58  Me.  267  ;  U.  S.  v.  Hunter,  15  F.  R.  712  ;  see  p.  140.  n.  I,  ante.\ 


Chap.  XV.]      THE  LAW  OF  EVIDENCE.  209 

Article  120. 

witness  not  to  be  compelled  to  criminate  himself. 

No  one  is  bound  to  answer  any  question  if  the  answer  thereto 
would,  in  the  opinion  of  the  judge,  have  a  tendency  to  expose 
the  witness '  (or  the  wife  or  husband  of  the  witness)  ^  to  any 


'  R.  V.  Boyes,  i  B.  &  S.  330 ;  [Gr.  Ev.  i.  $$  451-453  ;  Wh.  Ev.  i.  §ij  533- 
541 ;  N.  Y.  Code  Civ.  Pro.  $  837  ;  Henry  v.  Salina  Bk.,  2  Den.  155,  I  N. 
Y.  83;  Comm.  v.  Nichols,  114  Mass.  285;  Phelin  \.  Kenderdinc^  20  Pa.  St. 
354;  State  V.  Lonsdale,  48  Wis.  348.  The  privilege  is  that  of  the  witness 
and  not  of  the  party  to  the  suit,  and  may  be  waived  by  the  witness  (Cloyes 
V.  Thayer,  3  Hill,  564  ;  Comm.  v.  Shaw,  4  Cush.  594  ;  Roady  v.  Fiiieg^an, 
43  Md.  490  ;  State  v.  Wcntworth^  65  Me.  234)  ;  and  ceases  to  exist  if  the 
criminal  prosecution  is  barred  by  the  Statute  of  Limitations  or  otherwise 
(Wh.  Ev.  i.  $  540;  People  v.  Kelley,  24  N.  Y.  74),  or  if  the  testimony 
cannot  by  statute  be  used  against  him  {U.  S.  v.  McCarthy,  18  F.  R.  87 ; 
Kendrick  v.  Comm.,  78  Va.  490).  The  privilege  is  not  always  to  be  allowed 
when  claimed,  but  only  when  it  appears  to  the  court  from  the  nature  of 
the  examination  that  the  witness  is  exposed  to  danger  by  the  inquiry 
made  ;  but  this  appearing,  he  need  not  show  how  the  answer  will  crimi- 
nate him.  In  re  Reynolds,  L.  R.  20  Ch.  D.  294  ;  Youngs  v.  Youngs,  5 
Redf.  505  ;  see  Lamb  v.  A  funster,  10  Q.  B.  D.  no.  If  the  witness  dis- 
closes without  objection  part  of  a  transaction  criminating  him,  it  is  the 
general  American  rule  that  he  must  disclose  the  whole  {Comm.  v.  Pratt, 
126  Mass.  462  ;  People  v.  Freshour,  55  Cal.  375  ;  Ceburn  v.  Odell,  10  Fos- 
ter, 540;  State  V.  Fay,  43  la.  651  ;  see  Youngs  v.  Youngs,  supra),  unless 
the  partial  disclosure  is  made  under  innocent  mistake  {Mayo  v.  Mayo, 
119  Mass.  290).  But  in  England  a  partial  statement  does  not  forfeit  the 
privilege.  R.  v.  Garbett,  I  Den.  C.  C.  236.  Testimony  given  under  com- 
pulsion of  the  court,  contrary  to  the  privilege,  cannot  be  used  against  the 
witness.     Horstman  v.  Kaufman,  97  Pa.  St.  147  •,  see  Art.  23,  ante. 

When  a  party  voluntarily  becomes  a  witness  and  testifies  as  to  any 
crime  charged  against  him,  it  is  held  in  many  States  that  he  may  be  cross- 
examined  upon  all  facts  relevant  to  that  issue,  and  cannot  refuse  to  tes- 
tify. Comm.  V.  Nichols,  114  Mass.  285  ;  Roady  v.  Finegan,  43  Md.  490  ; 
State  V.  Ober,  52  N.  H.  459 ;  State  v.  Witham,  T2  Me.  531  ;  People  v. 
Casey,  72  N.  Y.  393  ;  see  People  v.  Brown,  Id.  571  ;  State  v.  Clinton,  67 
Mo.  380  ;  People  v.  Beck,  58  Cal.  212  ;  State  v.  Red,  53  la.  69  ] 

2  As  to  husbands  and  wives,  see  i  Hale,  P.  C.  301  ;  R.  v.  Cliviger,  2 
T.  R.  263  ;   Cartivright  v.  Green,  8  Ve.  405  ;  R.  v.  Bathwick,  2  B.  &  Ad. 


2IO  A  DIGEST  OF  [Part  III. 

criminal  charge,  or  to  any  penalty  or  forfeiture  which  the  judge 
regards  as  reasonably  likely  to  be  preferred  or  sued  for  ;  but 
no  one  is  excused  from  answering  any  question  only  because 
the  answer  may  establish  or  tend  to  establish  that  he  owes  a 
debt,  or  is  otherwise  liable  to  any  civil  suit,  either  at  the  in- 
stance of  the  Crown  or  of  any  other  person.^ 

Article  121. 

corroboration,  when  required.' 

When  the  only  proof  against  a  person  charged  with  a  crimi- 
nal offence  is  the  evidence  of  an  accomplice,  uncorroborated 


639  ;  R.  V.  All  Saints,  Worcester^  6  M.  &  S.  194.  These  cases  show  that 
even  under  the  old  law  which  made  the  parties  and  their  husbands  and 
wives  incompetent  witnesses,  a  wife  was  not  incompetent  to  prove  matter 
which  might  tend  to  criminate  her  husband.  R.  v.  divider  assumes  that 
she  was,  and  was  to  that  extent  overruled.  As  to  the  later  law,  see  R.  v. 
Halliday,  Bell,  257.  The  cases,  however,  do  not  decide  that  if  the  wife 
claimed  the  privilege  of  not  answering  she  would  be  compelled  to  do  so, 
and  to  some  extent  they  suggest  that  she  would  not.  [To  the  same  effect 
is  State  v.  Briggs,  9  R.  I.  361  ;  see  State  v.  Bridgtnan,  49  Vt.  202  ;  Royal 
Ins.  Co.  V.  IVoble,  5  Abb.  Pr.  (N.  S.)  54 ;  State  v.  Wilson,  31  N.  J.  L.  77  ; 
State  V.  Welch,  26  Me.  30 ;  Comtn.  v.  Sparks,  7  Allen,  534  ;  Keep  v. 
G>'ig&''<  12  Bradw.  511 ;  p.  197,  n.  i,  ante.'\ 

>  46  Geo.  III.  c.  ■i^.  See  R.  v.  Scott,  25  L.  J.  M.  C.  128,  7  C.  C.  C. 
164,  and  -subsequent  cases  as  to  bankrupts,  and  Ex  parte  Scholfield,  L. 
R.  6  Ch.  D.  230  ;  [Gr.  Ev.  i.  §1  452  ;  N.  Y.  Code  Civ.  Pro.  §  837  ;  In  re  Kip, 
I  Pai.  601  ;  Dull  v.  Loveland,  10  Pick.  9  ;  Lowney  v.  Perham,  20  Me.  235.  J 

^  [Mr.  Stephen  begins  this  article  with  the  following  special  statutory 
rules  of  the  English  law  :  "  No  plaintiff  in  any  action  for  breach  of  prom- 
ise of  marriage  can  recover  a  verdict,  unless  his  or  her  testimony  is  cor- 
roborated by  some  other  material  evidence  in  support  of  such  promise. 
32  &  33  Vict.  c.  68  s.  2.  {Queer e,  is  he  bound  to  produce  a  document 
criminating  himself;  see  Webb  v.  East,  5  Ex.  D.  23  and  109). 

"  No  order  against  any  person  alleged  to  be  the  father  of  a  bastard 
child  can  be  made  by  any  justices,  or  confirmed  on  appeal  by  any  Court 
of  Quarter  Session,  unless  the  evidence  of  the  mother  of  the  said  bas- 
tard child  is  corroborated  in  some  material  particular  to  the  satisfaction 


Chap.  XV.]      THE  LAW  OF  EVIDENCE.  211 

in  any  material  particular,  it  is  the  duty  of  the  judge  to  warn 
the  jury  that  it  is  unsafe  to  convict  any  person  upon  such  evi- 
dence, though  they  have  a  legal  right  to  do  so.' 


of  the  said  justices  or  Court  respectively.  8  &  9  Vict.  c.  10,  s.  6  ;  35  &  2i^ 
Vict.  c.  6,  s.  4." 

Generally  in  this  country  the  common-law  rule  applies  in  these  cases 
and  no  corroboration  is  required.  See  as  to  breach  of  promise,  Homati  v. 
Earle,  53  N.  Y.  267  ;  IVightman  v.  Coates,  15  Mass.  I  :  as  to  bastardy, 
State  V.  Nichols,  29  Minn.  357;  State  v.  McGlothlen,  56  la.  544;  for  a 
special  rule  in  Massachusetts,  see  Mass.  Pub.  St.,  c.  85,  s.  16  ;  ILnues  v. 
Gustin,  2  Allen,  402. 

In  some  analogous  cases  corroboration  is  required.  Thus  in  Now 
York  and  some  other  States,  seduction  under  promise  of  marriage  is  de- 
clared to  be  a  crime,  but  no  conviction  can  be  had  on  the  testimony  of 
the  female  seduced,  uncorroborated  by  other  evidence.  Armstrong  v. 
People,  70  N.  Y.  38  ;  Zabriskie  v.  State,  43  N.  J.  L.  640  ;  Rice  v.  Comm., 
100  Pa.  St.  28;  State  v.  Tulley,  18  la.  88;  State  v.  Timmens,  4  Minn. 
325;  so  in  Iowa  as  to  abduction,  rape,  etc.  State  v.  McGlothlen,  56  hi. 
544- 

So  in  some  States  it  is  a  general  rule  not  to  grant  a  divorce  on  the  un- 
corroborated testimony  of  the  complainant  {Robbins  v.  Robbins,  100  Mass. 
150  ;  Tate  v.  Tate,  26  N.  J.  Eq.  55  ;  contra,  Flattery  v.  Flattery,  88  Pa. 
St.  27)  ;  or  the  uncorroborated  confessions  of  the  defendant.  Lyo//  v. 
Lyon,  62  Barb.  138  ;  Summer  bell  v.  Summerbcll,  37  N.  J.  Eq.  603  ;  Evans 
v.  Evans,  41  Cal.  103  ;  N.  Y.  Code  Civ.  Pro.  5  i753- 

For  other  cases,  see  next  article.] 

>  I  Ph.  Ev.  93-101  ;  T.  E.  ss.  887-91 ;  3  Russ.  Cri.  600-611.  [Gr.  Ev.  i.  % 
45,  380-382  ;  Stape  v.  People,  85  N.  Y.  390  ;  Watson  v.  Comm. ,  95  Pa.  St.  418  ; 
State  V.  Allen,  57  la  431  ;  U.  S.  v.  Biebusch,  i  McCrary,  42  ;  State  \.  Litch- 
field, 58  Me.  267.  But  the  cases  differ  as  to  the  nature  and  e.xtent  of  the 
corroboration  required.  (Id. ;  Gr.  Ev.  i.  $  381. )  In  New  York  it  must  tend 
to  connect  the  defendant  with  the  commission  of  the  crime.  Code  Cr. 
Pro.  %  399  ;  S.  P.  Comm.  v.  Hohnes,  \2rj  Mass.  424  ;  see  Hester  v.  Comm., 
85  Pa.  St.  139.  It  is  said  to  be  a  rule  of  practice  to  warn  the  Jury,  not  a 
rule  of  law  {Comm.  v.  Larrabee,  99  Mass.  413),  and  discretionary  with 
the  court.     Ingalls  v.  State,  48  Wis.  647. 

As  to  persons  who,  like  detectives,  are  only  apparent  accomplices  and 
need  no  corroboration,  see  Gr.  Ev.  i.  §382;  Campbell  v.  Comm.,  84  Pa. 
St.  187  ;  State  v.  McKean,  36  la.  343  ;  Comm.  v.  Graves,  97  Mass.  114. 

Upon  the  maxim  falsus  in  una,  falsiis  in  omnibus,  the  testimony  of  a 


212  A  DIGEST  OF  [Part  III. 

Article  122. 

number  of  witnesses. 

In  trials  for  high  treason,  or  misprision  of  treason,  no  one 
can  be  indicted,  tried,  or  attainted  (unless  he  pleads  guilty)  ex- 
cept upon  the  oath  of  two  lawful  witnesses,  either  both  of  them 
to  the  same  overt  act,  or  one  of  them  to  one  and  another  of  them 
to  another  overt  act  of  the  same  treason.'  If  two  or  more  dis- 
tinct treasons  of  divers  heads  or  kinds  are  alleged  in  one  in- 
dictment, one  witness  produced  to  prove  one  of  the  said  trea- 
sons and  another  witness  produced  to  prove  another  of  the 
said  treasons  are  not  to  be  deemed  to  be  two  witnesses  to  the 
same  treason  within  the  meaning  of  this  article.'^ 

If  upon  a  trial  for  perjury  the  only  evidence  against  the  de- 
fendant is  the  oath  of  one  witness  contradicting  the  oath  on 
which  perjury  is  assigned,  and  if  no  circumstances  are  proved 


witness  who  has  wilfully  and  knowingly  sworn  falsely  as  to  a  material 
point  tnay  be  disregarded  by  the  jury  unless  corroborated.  Smith  v. 
Forbes,  14  Bradw.  477  ;  O' Rourke  v.  G'Rowke,  43  Mich.  58  ;  People  v. 
Soto,  59  Cal.  367  ;  Moett  v.  People^  85  N.  Y.  373  ;  Lcmmon  v.  Aloore,  94  Ind. 
40.  But  it  is  not  a  rule  of  law  that  they  must  so  disregard  it.  Id.  ;  Comm. 
V.  Billings,  97  Mass.  405  ;  Pennsylvania  Co.  v.  Conlan,  loi  111.  93  ;  Fier- 
son  V.  Galbraith,  12  Lea,  129.] 

'  [The  law  of  this  country  is  somewhat  different,  the  U.  S.  Constitu- 
tion providing  that  "no  person  shall  be  convicted  of  treason  unless  on 
the  testimony  of  two  witnesses  to  the  sa7ne  overt  act,  or  on  confession  in 
open  court."  Art.  3,  s.  3.  A  similar  provision  is  found  in  many  of  the 
State  constitutions  as  to  treason  against  the  State.     Gr.  Ev.  i.  ^  255.] 

2  7  &  8  Will.  III.  c.  3,  ss.  2,  4  ;  [Gr.  Ev.  i.  §  256.] 

2  [At  this  point  Mr.  Stephen  adds  the  following  special  rule  of  the  En- 
glish law :  "  This  provision  does  not  apply  to  cases  of  high  treason  in 
compassing  or  imagining  the  Queen's  death,  in  which  the  overt  act  or 
overt  acts  of  such  treason  alleged  in  the  indictment  are  assassination  or 
killing  of  the  Queen,  or  any  direct  attempt  against  her  life,  or  any  direct 
attempt  against  her  person,  whereby  her  life  may  be  endangered,  or  her 
person  suffer  bodily  harm,  or  to  misprision  of  such  treason.  39  &  40  Geo. 
III.  c.  93."] 


Chap.  XV.]      THE  LAW  OF  EVIDENCE.  213 


which  corroborate  such  witness,  the  defendant  is  entitled  to 
be  acciuittcd.'  ^ 

'  3  Russ.  on  Crimes,  77-86 ;  [Gr.  Ev.  i.  %^  257-259 ;  Williams  v. 
Comm. ,  91  Pa.  St.  493  ;  People  v.  Stone,  32  Hun,  41 ;  State  v.  Heed,  57  Mo. 
252  ;  Comm.  v.  Parker,  2  Cash.  212  ;    U.  S.  v.   Wood,  14  Pet.  430.] 

"^  [It  is  a  chancery  rule  that  where  a  bill  is  so  framed  as  to  compel  an 
ans'.viir  on  oath  and  such  answer  denies  the  allegations  of  the  bill,  the 
uncorroborated  evidence  of  one  witness  in  support  of  the  bill,  will  not  be 
sufficient  basis  for  a  decree.  Gr.  Ev.  i.  ^  260;  Morris  v.  White,  36  N. 
J.  liq.  324;  Vigelw  Hopp,  104  U.  S.  441;  Campbell  v.  Patterson,  95  Pa. 
St.  447  ;  Jones  v.  Abraham,  75  Va.  465  ;  Mey  v.  Gulliman,  105  111.  272. 
But  in  New  York  this  rule  no  longer  exists.  Stihvell  v.  Carpenter,  62  N. 
Y.  639. 

.A.fter  some  doubt,  it  is  now  held  that  a  usage  of  business  may  be  es- 
tablished by  the  testimony  of  one  witness.  Robinson  v.  U.  S. ,  13  Wall. 
363 ;  Bissell  v.  Campbell,  54  N.  Y.  353  ;  Jones  v.  Hoejy,  128  Mass.  585  ; 
Adams  v.  Pittsburgh  Ins.  Co.,  95  Pa.  St.  348.] 


214  A  DIGEST  OF  [Part  III. 


CHAPTER    XVI. 

OF    TAKING    ORAL   EVIDENCE,  AND  OF  THE 
EXAMINATION  OF  WITNESSES. 

Article  123. 
evidence  to  be  upon  oath,  except  in  certain  cases. 
All  oral  evidence  given  in  any  proceeding  must  be  given  upon 
oath,  but  if  any  person  called  as  a  witness  refuses  or  is  un- 
willing to  be  sworn  from  alleged  conscientious  motives,  the 
judge  before  whom  the  evidence  is  to  be  taken  may,  upon  being 
satisfied  of  the  sincerity  of  such  objection,  permit  such  person, 
instead  of  being  sworn,  to  make  his  or  her  solemn  affirmation 
and  declaration  in  the  following  words  : — 

"  I,  A  B,  do  solemnly,  sincerely,  and  truly  affirm  and  declare 
that  the  taking  of  any  oath  is  according  to  my  religious  belief 
unlawful,  and  I  do  also  solemnly,  sincerely,  and  truly  affirm 
and  declare,"  &c.' 

^  If  any  person  called  to  give  evidence  in  any  Court  of  Justice, 


1  17  &  18  Vict.  c.  125,  s.  20  (civil  cases)  ;  24  &  25  Vict.  c.  66  (criminal 
cases). 

2  32  &  33  Vict.  c.  68,  s.  4  ;  33  &  34  Vict.  c.  49.  I  omit  special  provisions 
as  to  Quakers,  Moravians,  and  Separatists,  as  the  enactments  mentioned 
above  include  all  cases.  The  statutes  are  referred  to  in  T.  E.  s.  1254  ; 
R.  N.  P.  175-6.  [Provisions  similar  to  those  set  forth  in  this  article  have 
been  generally  adopted  in  this  country  by  statute.  Thus  it  is  provided 
in  the  U.  S.  Revised  Statutes  {^  i)  that  "  the  requirement  of  an  'oath' 
shall  be  deemed  complied  with  by  making  affirmation  in  judicial  form." 
So  in  New  York,  a  solemn  declaration  or  affirmation,  in  the  following 
form,  is  administered  to  a  person  who  declares  that  he  has  conscientious 
scruples  against  taking  an  oath  :  "  You  do  solemnly,  sincerely,  and  truly, 
declare  and  affirm,"  etc.  Code  Civ.  Pro.  %  847.  Other  States  have  like 
provisions.  Under  such  laws  a  wilful  false  oath  or  affirmation  consti- 
tutes perjury.     Id.  %  851 ;  U.  S.  Rev.  St.  %  5392.] 


Chap.  XVI.]     THE  LAW  OF  EVIDENCE.  215 

whether  in  a  civil  or  criminal  proceeding,  objects  to  take  an 
oath,  or  is  objected  to  as  incompetent  to  take  such  an  oath, 
such  person  must,  if  the  presiding  judge  is  satisfied  that  the 
taking  of  an  oath  would  have  no  binding  effect  on  his  con- 
science, make  the  following  promise  and  declaration  : — 

"  I  solemnly  promise  and  declare  that  the  evidence  given  by 
me  to  the  Court  shall  be  the  truth,  the  whole  truth,  and  nothing 
but  the  truth." 

If  any  person  having  made  either  of  the  said  declarations  wil- 
fully and  corruptly  gives  false  evidence,  he  is  liable  to  be 
punished  as  for  perjury. 

Article  124. 
form  of  oaths  ;  by  whom  they  may  be  administered. 

Oaths  are  binding  which  are  administered  in  such  form  and 
with  such  ceremonies  as  the  person  sworn  declares  to  be  bind- 
ing.' 

Every  person  now  or  hereafter  having  power  by  law  or  by 
consent  of  parties  to  hear,  receive,  and  examine  evidence,  is 
empowered  to  administer  an  oath  to  all  such  witnesses  as  are 
lawfully  called  before  him.^ 


'  I  &  2  Vict.  c.  105.  For  the  old  law,  see  Omichundv.  Barker,  i  S.  L. 
C.  455.  [By  the  regular  common-law  form,  the  oath  is  administered  upon 
the  Gospels,  the  witness  kissing  the  book,  the  usual  formula  repeated 

to  him  being,  "  You  do  swear  that,"  etc. "  So  help  you  God. "     But 

often,  nowadays,  the  witness,  instead  of  kissing  the  book,  simply  raises 
his  hand  while  taking  the  oath.  But  the  rule  stated  in  this  article  is 
everywhere  accepted.  Thus  a  Mohammedan  may  be  sworn  on  the 
Koran,  a  Brahmin  or  a  Chinaman  by  the  peculiar  methods  used  in  their 
countries,  etc.  See  People  v.  yacksoti,  3  Park.  Cr.  590.  But  if  such  per- 
sons take  the  usual  form  of  oath  without  objection,  they  are  liable  for 
perjury,  if  they  wilfully  swear  falsely.     Gr.  Ev.  i.  ^  371. 

In  some  States,  these  general  rules,  more  or  less  modified,  are  pre- 
scribed by  statute.  See  N.  Y.  Code  Civ.  Pro.  %^  845-851  ;  Mass.  Pub. 
St.,  c.  169,  ^§  13-18.] 

'  14  &  15  Vict.  c.  99,  s.  16.     [Similar  statutes  are  generally  in  force  in 


2i6  A  DIGEST  OF  [Part  III. 

Article  125. 

how  oral  evidence  may  be  taken. 

Oral  evidence  may  be  taken  '  (according  to  the  law  relating 
to  civil  and  criminal  procedure) — 

In  open  court  upon  a  final  or  preliminary  hearing  ;  '^ 

Or  out  of  court  for  future  use  in  court — 

{a)  upon  affidavit, 

{b)  under  a  commission/ 


this  country.  See  U.  S.  Rev.  St.  §§  loi,  183,  474,  1778,  etc.;  N.  Y.  Code 
Civ.  Pro.  §  843  ;  Mass.  Pub.  St.,  c.  169,  %  7,  12.] 

'  As  to  civil  procedure,  see  Order  XXXVII  to  Judicature  Act  of  1875  ; 
Wilson,  pp.  264-7.  As  to  criminal  procedure,  see  11  &  12  Vict.  c.  42,  for 
preliminary  procedure,  and  the  rest  of  this  chapter  for  final  hearings. 

2  [As  to  preliminary  hearings  in  criminal  cases,  there  are  statutes  in 
force  in  the  several  States  of  this  country,  providing  for  an  examination 
before  a  magistrate  into  the  circumstances  of  a  charge  against  an  accused 
person,  and  the  prisoner  may  be  examined,  as  well  as  witnesses  for  and 
against  him.  Bishop,  Cr.  Pro.  ^$  225-239,  3d  ed.;  N.  Y.  Code  Cr.  Pro. 
§^  188-221.  So  in  civil  cases,  statutes  in  some  States  provide  for  the 
examination  before  trial  of  the  parties  to  a  cause,  or  of  other  persons 
whose  testimony  is  material  and  necessary,  and  may  otherwise  be  lost 
(see  N.  Y.  Code  Civ.  Pro.  §§  870-886  ;  Mass.  Pub.  St.,  c.  167,  ss.  49-60)  ; 
but  the  examination  of  a  party  before  trial  is  not  permissible  in  actions  at 
law  in  the  U.  S.  courts.     Ex  parte  Fisk,  113  U.  S.  713.] 

2  The  law  as  to  commissions  to  take  evidence  is  as  follows  :  The  root  of 
it  is  13  Geo.  III.  c.  63.  Section  40  of  this  Act  provides  for  the  issue  of  a 
commission  to  the  Supreme  Court  of  Calcutta  (which  was  first  estab- 
lished by  that  Act)  and  the  corresponding  authorities  at  Madras  and 
Bombay  to  take  evidence  in  cases  of  charges  of  misdemeanor  brought 
against  Governors,  etc.,  in  India  in  the  Court  of  Queen's  Bench.  S.  42 
applies  to  parliamentary  proceedings,  and  s.  44  to  civil  cases  in  India. 
These  provisions  have  been  extended  to  all  the  colonies  by  i  Will.  IV.  c. 
22,  and  so  far  as  they  relate  to  civil  proceedings  to  the  world  at  large.  3 
&  4  Vict.  c.  105,  gives  a  similar  power  to  the  Courts  at  Dublin. 

[There  are  statutes  in  the  several  States  of  this  country,  providing  for  the 
issuing  of  commissions  by  a  court  or  judge,  by  which  commissioners  are 
appointed  to  take  the  depositions  of  witnesses  in  other  States  or  countries, 
for  ysc  in  the  particular  State  issuing  the  copimission,     The  courts  of  the 


Chap.  XVI.]     THE  LAW  OF  EVIDENCE.  217 

U)  '  before  any  officer  of  the  Court  or  any  other  person  or 
persons,  appointed  for  that  purpose  by  the  Court  or  a 
judge  [under  due  legal  authority,  or  designated  by 
statute,  or  selected  by  agreement  of  the  parties.]  " 

Oral  evidence  taken  in  open  court  must  be  taken  according 


foreign  jurisdiction  will  usually  aid  such  commissioners  in  obtaining  the 
desired  testimony,  by  compelling  witnesses  to  come  before  them,  etc., 
either  upon  principles  of  comity,  or  in  accordance  with  their  own  local 
statutes  making  this  their  duty.  Another  mode  of  obtaining  such  evi- 
dence is  by  the  issuing  of  "  letters  rogatory,"  which  are  in  the  form  of  a 
letter  missive  from  a  domestic  to  a  foreign  court,  requesting  it  to  pro- 
cure and  return  the  desired  testimony,  under  promise  of  a  like  favor  when 
required.  Gr.  Ev.  i.  §  320.  Sometimes  foreign  courts  will  comply  with 
such  a  request,  but  will  not  aid  commissioners,  and  then  the  use  of  let- 
ters rogatory  is  necessary  ;  but  the  usual  practice  is  to  issue  a  commis- 
sion. See  U.  S.  Rev.  St.  $§  863-876  ;  N.  Y.  Code  Civ.  Pro.  §$  887-920  ; 
Mass.  Pub.  St.,  c.  169,  j^  23-64;  Anonymous,  59  N.  Y.  313;  Stein  v. 
Bowman,  13  Pet.  209] 

'  [This  paragraph  is  somewhat  changed  from  the  original,  and  the  next 
one  in  the  original  is  wholly  omitted  here,  since  they  relate  to  the  special 
provisions  of  English  statutes.     Their  original  form  is  as  follows  : 

"  (c)  before  any  officer  of  the  Court  or  any  other  person  or  persons 
appointed  for  that  purpose  by  the  Court  or  a  judge  under  the  Judicature 
Act,  1875,  Order  XXXVII,  4. 

"Oral  evidence  taken  upon  a  preliminary  hearing  may,  in  the  cases 
specified  in  11  &  12  Vict.  c.  42,  s.  17,  30  &  31  Vict.  c.  35,  s.  6,  and  17  & 
18  Vict.  c.  104,  s.  270,  be  recorded  in  the  form  of  a  deposition,  which  dep- 
osition may  be  used  as  documentary  evidence  of  the  matter  stated 
therein  in  the  cases  and  on  the  conditions  specified  in  Chapter  XVII."] 

'■'  [Commonly  in  this  country,  by  the  provisions  of  statutes  or  of  rules  of 
court,  persons  called  variously  referees,  auditors,  commissioners,  exam- 
iners, etc.,  may  be  appointed  by  a  judge  or  court  to  take  testimony  and 
report  it  for  the  information  of  the  court ;  or  such  persons  may  be  ap- 
pointed or  selected  by  the  parties  to  act  as  judges  in  hearing  and  deciding 
causes  (see  N.  Y.  Code  Civ.  Pro.  $$  827,  1011-1026  ;  Mass.  Pub.  St.,  c.  159, 
$  51  ;  Howe  Machine  Co.  v.  Edwards,  15  Blatch.  402)  ;  masters  in  chan- 
cery perform  similar  duties.  So  statutes  providing  for  the  taking  of  tes- 
timony in  special  cases  may  designate  by  official  name  the  persons  be- 
fore whom  it  may  be  taken.  N.  Y.  Code  Civ.  Pro.  ^  899  ;  U.  S,  Rev,  St, 
%  863.] 


2i8  A  DIGEST  OF  [Part  III. 

to  the  rules  contained  in  this  chapter  relating  to  the  examina- 
tion of  witnesses. 

'  Oral  evidence  taken  under  a  commission  must  be  taken  in 
the  manner  prescribed  by  the  terms  of  the  commission. 

*  Oral  evidence  taken  under  [c)  must  be  taken  in  the  same 
manner  as  if  it  were  taken  in  open  court ;  but  the  examiner 
has  no  right  to  decide  on  the  validity  of  objections  taken  to 
particular  questions,  but  must  record  the  questions,  the  fact 
that  they  were  objected  to,  and  the  answers  given.' 

^  Oral  evidence  given  on  affidavit  must  be  confined  to  such 
facts  as  the  witness  is  able  of  his  own  knowledge  to  prove, 
except  on  interlocutory  motions,  on  which  statements  as  to  his 
belief  and  the  grounds  thereof  may  be  admitted.'^     The  costs 


'  T.  E.  491.  [The  mode  of  taking  depositions  is  often  prescribed  by 
statute  or  by  rules  of  court  ;  it  is  sometimes  provided  that  such  regula- 
tions shall  be  annexed  to  the  deposition.  See  U.  S.  Rev.  St.  §$  863- 
868  ;  Rules  of  the  Federal  Courts  ;  N.  Y.  Code  Civ.  Pro.  §$  900-909.  It 
Is  a  general  rule  that  such  regulations  must  be  carefully  and  precisely 
followed.] 

2  T.  E.  s.  1283  ;   [see  p.  217,  n.  i,  attte.'l 

5  [So  it  is  held  in  New  York  that  a  referee  appointed  to  take  evidence 
should  take  all  that  is  offered,  and  has  no  power  to  pass  upon  objections, 
such  power  belonging  to  the  court.  Scott  v.  IVil/iams,  14  Abb.  Pr.  70  ; 
Fox  V.  Moyer,  54  N.  Y.  125.  A  similar  rule  is  adopted  in  the  equity  prac- 
tice of  the  Federal  Courts  as  to  the  taking  of  testimony  by  examiners. 
Rule  6-]  of  the  Equity  Rules,  U.  S.  Courts  ;  see  Roberts  v.  Walley,  14  F. 
R.  167.  And  other  States  have  similar  practice.  Brotherto?i  v.  Brother- 
ton,  14  Neb.  186;  cf.  yones  v.  Keen,  115  Mass.  170.  But  referees,  etc., 
having  power  to  hear  and  determine  issues,  may  decide  upon  objections 
to  testimony.  Cincitmati  v.  Cameron,  ■^1,  O.  St.  336  ;  N.  Y.  Code  Civ. 
Pro.  §  1018.] 

4  Judicature  Act,  1875,  Order  XXXVII,  4. 

s[So  in  New  York  and  some  other  States,  affidavits  upon  interlocutory 
motions  may  contain  statements  upon  information  and  belief,  but  the 
sources  of  such  information  and  the  grounds  of  such  belief  should  also 
be  stated,  and  the  reasons  why  the  affidavit  of  a  person  having  knowledge 
of  the  matter  cannot  be  procured  should  usually  appear.  Howe  Co.  v. 
Pettibone,  74  N.  Y.  68  ;  Pier  son  v.  Freeman,  tj  Id.  589 ;  Bennett  v.  Ed- 
wards, 27  Hun,  352 ;  Stak  v.  FQ<)te^  83  N.  C.  102 ;  Mitchell  v.  Pitts,  61 


Chap.  X\IJ      THE  LAW  OF  EVIDENCE.  219 

of  every  affidavit  unnecessarily  setting  forth  matters  of  hearsay 
or  argumentative  matter,  or  copies  of  or  extracts  from  docu- 
ments, must  be  paid  by  the  party  filing  them.' 

°  When  a  deposition,  or  the  return  to  a  commission,  or  an 
affidavit,  or  evidence  taken  before  an  examiner,  is  used  in  any 
court    as   evidence   of  the   matter   stated   therein,    the   party 


Ala.  219.  But  affidavits  merely  stating  belief,  or  information  and  belief, 
have,  in  many  cases,  been  held  insufficient.  Ada?ns  v.  Merritt,  10 
Bradw.  275;  Hackett  v.  ytidge,  etc.,  36  Mich.  334  ;  Murphy  v.  Purdy,  13 
Minn.  422  ;  G.irner  v.  White,  23  O.  St.  192  ;  Thompson  v.  Higginbotham, 
18  Kan.  42. 

Ex  parte  affidavits  are  evidence  only  when  made  so  by  some  statute. 
People  V.  Walsh,  87  N.  Y.  481.  As  to  the  difference  between  an  affidavit 
and  a  deposition,  see  Stimpson  v.  Brooks^  3  Blatch.  456.] 

'  [An  attorney  who  draws  an  affidavit  is  liable  for  costs  if  ii  contains 
irrelevant  and  scandalous  matter,  which  is  stricken  out  on  motion.  Mc- 
Vey  v.  Cantrell,  8  Hun,  522  ;  cf.  Pitcher  v.  Clark,  2  Wend.  631.] 

*  T.  E.  491.  Hutchinson  v.  Bernard,  2  Mo.  &  Ro.  I.  [It  is  a  general 
rule  in  this  country  that,  if  opportunity  e.xists  for  so  doing,  objections  to 
a  deposition  in  respect  to  matters  of  form,  or  on  the  ground  that  it  was 
irregularly  or  improperly  taken,  or  that  fraud  was  practiced,  etc.,  should 
be  raised  when  the  interrogatories  are  framed,  or  upon  the  examination 
of  the  witness  under  the  commission,  or  upon  a  motion  to  suppress  the 
deposition  ;  but  objections  to  the  competency  of  the  witness,  or  to  the 
relevancy  or  competency  of  any  question  or  answer,  may  be  made  when 
the  deposition  is  read  in  evidence.  York  Co.  v.  Central  R.  Co.,  3  Wall. 
107  ;  N.  Y.  Code  Civ.  Pro.  §$  910,  911  ;  Newton  v.  Porter.,  69  N.  Y.  133  ; 
Atlantic  Ins.  Co.  v.  Fitzpatrick,  2  Gray,  279  ;  Palleys  v.  Ocean  Ins.  Co.^ 
14  Me.  141  ;  Stowell  v.  Moore,  89  111.  563  ;  Horseman  v.  Todhunter,  12  la. 
230  ;  Barnum  v.  Barnum,  42  Md.  251.  Objections  to  questions  as  lead- 
ing relate  to  form,  and  should  be  taken  before  the  trial.  Akers  v.  De- 
mand, 103  Mass.  318  ;  Hazlcwood  v.  Hcminway,  3  T.  &  C.  787  ;  Crowell 
V.  Western  Reserve  Bk.,  3  O.  St.  406;  Hilly.  Canfield,  63. Pa.  St.  77; 
Chambers  v.  Hunt.,  2  Zab.  552. 

Answers  which  are  not  responsive  may  be  objected  to  by  either  party. 
Lansing  V.  Coley,  13  Abb.  Pr.  272;  Greenman  v.  O'Connor,  25  Mich.  30; 
Kingsbury  v.  Moses,  45  N.  H.  222.  And  where  a  party  uses  a  deposition 
taken  by  his  opponent,  he  makes  it  his  own,  and  the  adverse  party  may 
then  object  to  answers  given  to  questions  which  he  himself  propounded. 
Hatch  v.  Brown,  63  Me.  410.] 


220  A  DIGEST  OF  [Part  III. 

against  whom  it  is  read  may  object  to  the  reading  of  anything 
therein  contained  on  any  ground  on  which  he  might  have  ob- 
jected to  its  being  stated  by  a  witness  examined  in  open  court, 
provided  that  no  one  is  entitled  to  object  to  the  reading  of  any 
answer  to  any  question  asked  by  his  own  representative  on  the 
execution  of  a  commission  to  take  evidence. 


Article  126.* 

examination  in  chief,  cross-examination,  and 
re-examination. 

Witnesses  examined  in  open  court  must  be  first  examined  in 
chief,  then  cross-examined,  and  then  re-examined.' 

Whenever  any  witness  has  been  examined  in  chief,  or  has 


*  See  Note  XLV. 

'  [The  court  may,  in  its  discretion,  order  witnesses  to  withdraw  from 
the  court-room,  so  that  they  may  not  hear  each  other's  testimony.  If  any 
witness  disobeys  the  order,  this  may  be  observed  upon  to  the  jury  to 
affect  his  credibility,  and  he  is  punishable  for  contempt ;  but  the  court 
cannot  refuse  to  allow  him  to  be  examined,  unless  his  disobedience  was 
by  the  procurement,  connivance,  or  other  fault  of  the  party  calling  him, 
in  which  case  it  may  refuse  or  permit  examination.  This  is  now  held  by 
weight  of  authority.  Gr.  Ev.  i.  §  432  ;  Dickson  v.  State,  39  O.  St.  73  ; 
Davis  V.  Byrd,  94  Md.  525  ;  Davenport  v.  Ogg,  15  Kan.  363  ;  Hey's  Case, 
32  Gratt.  946  ;  Hubbard  v.  Hubbard,  7  Or.  42  ;  People  v.  Boscovitch,  20 
Cal.  436.  Another  method  is  to  have  an  officer  of  the  court  remove  the 
witnesses. 

A  party's  failure  to  call  a  witness  who  might  be  called,  does  not  gener- 
ally raise  a  presumption  that  his  testimony  would  be  unfavorable  to  such 
party.  Scovill  v.  Baldwin,  27  Ct.  316  ;  Bleecker  v.  jfohnston,  69  N.  Y. 
309.  But  where  the  witness's  testimony  would  be  of  vital  importance  in 
the  case  (as  e.g.,  if  he  were  the  only  eye-witness  of  the  facts),  an  unfavor- 
able inference  by  the  jury  is  warranted,  especially  if  the  adverse  party 
has  no  legal  right  to  call  the  witness.  People  v.  Hovey,  92  N.  Y.  554  ; 
State  \.  Rodman,  62  la.  456;  Rice  y.  Co7nm.,  102  Pa.  St.  408;  The  Fred 
M-  Laurence,  15  F.  R.  633.] 


Chap.  XVI.]     THE  LAW  OF  EVIDENCE.  221 

been  intentionally  sworn,  or  has  made  a  promise  and  declara- 
tion as  hereinbefore  mentioned  for  the  purpose  of  giving  evi- 
dence,' the  opposite  party  has  a  right  to  cross-examine  him  ;  "^ 
but  the  opposite  party  is  not  entitled  to  cross-examine  merely 
because  a  witness  has  been  called  to  produce  a  document  on  a 
sjtbpana  duces  tecum,  or  in  order  to  be  identified.'  After  the 
cross-examination  is  concluded,  the  party  who  called  the  wit- 
ness has  a  right  to  re-examine  him. 

The  Court  may  in  all  cases  permit  a  witness  to  be  recalled 
either  for  further  examination  in  chief  or  for  further  cross- 
examination,  and  if  it  does  so,  the  parties  have  the  right  of 
further  cross-examination  and  further  re-examination  respect- 
ively.* 

If  a  witness  dies,  or  becomes  incapable  of  being  further 


'  [See  Art.  123.  As  forms  of  affirmation  different  from  the  English  are 
allowed  in  this  country,  this  clause  will  need  variation  to  adapt  it  to  the 
local  State  law.] 

-  [In  a  few  States  of  this  country,  a  similar  rule  prevails,  and  a  witness 
called  to  testify  merely  as  to  the  formal  execution  of  a  written  instru- 
ment, or  as  to  other  preliminary  matter,  etc.,  may  be  cross-examined  as 
to  all  matters  material  to  the  issue.  Blackingtoti  v.  yohnson,  126  Mass. 
21  ;  Bcal  v.  iXichols,  2  Gray,  262  ;  State  v.  Sayers,  58  Mo.  585  ;  Litisley  v. 
Lovely,  26  Vt.  123  ;  Kiblcr  v.  Mcllwain,  16  S.  C.  550  ;  Barker  v.  Blount, 
63  Ga.  423  ;  contra  in  Missouri  by  statute  as  to  the  cross-examination  of  a 
defendant  in  a  criminal  case,  State  v.  Turner,  76  Mo.  350.  But  in  most 
States  the  rule  is  adopted  that  the  cross-examination  must  be  limited  to 
matters  stated  upon  the  direct  examination.  See  next  article  ;  Gr.  Ev.  i. 
^  445-447  ;  Wh.  Ev.  i.  §  529.] 

3  [See  note  to  15  F.  R.  726  ;  Aikin  v.  Martin,  11  Pai.  499.  The  simple 
verification  of  a  signature  by  a  witness  does  not  entitle  the  adverse  party 
to  see  the  document  or  to  cross-examine  the  witness  upon  it,  until  it  is 
offered  in  evidence.     Stiles  v.  Allen,  5  Allen,  320.] 

■■  [Shepard  v.  Potter,  4  Hill,  202  ;  Williams  v.  Sergeant,  46  N.  Y.  481  ; 
Continental  Ins.  Co.  v.  Delpench,  82  Pa.  St.  225  ;  Comm.  v.  McGorty,  114 
Mass.  299;  State  v.  Rorabacher,  19  la.  154;  Cumtnings  v.  Taylor,  24 
Minn.  429  ;  George  v.  Pitcher,  28  Gratt.  300.  It  is  a  general  rule  that  the 
order  of  proof  is  in  the  discretion  of  the  trial  court.  Plainer  v.  Plainer, 
78  N.  Y.  90  ;  Hess  v.    Wilcox,  58  la.  380.] 


A  DIGEST  OF  [Part  III, 


examined  at  any  stage  of  his  examination,  the  evidence  given 
before  he  became  incapable  is  good.' 

If  in  the  course  of  a  trial  a  witness  who  was  supposed  to  be 
competent  appears  to  be  incompetent,  his  evidence  may  be 
withdrawn  from  the  jury,  and  the  case  may  be  left  to  their 
decision  independently  of  it.'' 


'  R.  V.  Doolin,  i  Jebb.  C.  C.  123.  The  judges  compared  the  case  to 
that  of  a  dying  declaration,  which  is  admitted  though  there  can  be  no 
cross-examination.  [By  the  weight  of  authority  in  this  country,  if  the 
death  of  a  witness  in  a  commo?i-law  action  precludes  his  cross-examina- 
tion, his  testimony  given  on  the  direct  examination  is  not  admitted  {People 
V.  Cole,  43  N.  Y.  508  ;  S.  C.  2  Lans.  370 ;  Prifigle  v.  Prmgle,  59  Pa.  St. 
281  ;  Sperry  v.  Moore's  Estate,  42  Mich.  353)  ;  unless  the  party  had  the 
opportunity  of  cross-examination  before  death  occurred  and  did  not 
choose  to  exercise  it  {Bradley  v.  Mirick,  91  N.  Y.  293)  ;  where,  however, 
the  witness's  testimony  is  substantially  complete,  though  the  examination 
was  not  wholly  finished,  it  will  be  received.  Fuller  v.  Rice,  4  Gray,  343. 
The  English  rule  has  been  chiefly  applied  in  equity  cases  (Gr.  Ev.  i.  $554  ; 
Gass  v.  Stimson,  3  Sumn.  98)  ;  and  only  a  few  have  declared  it  applicable 
to  common-law  actions  {Forrest  v.  Kissam,  7  Hill,  463  ;  see  Sturm  v. 
At'atitic  Ins.  Co.,  63  N.  Y.  77,  87;  the  New  York  cases  contain  contra- 
dictory expressions).  Where  the  opportunity  to  cross-examine  is  lost  by 
the  misconduct  of  the  witness,  or  through  the  fault  of  the  party  introduc- 
ing him,  or  other  like  cause,  his  evidence  in  chief  is  rejected.  Hewlett  v. 
Wood,  67  N.  Y.  394. 

As  to  the  effect  of  cross-examination  being  lost  by  the  death  oi  it. party, 
see  Hay's  Appeal,  91  Pa.  St.  265  ;  Co7nins  v.  Hefjield.,  12  Hun,  375,  80  N. 
Y.  261.] 

=  R.  V.  Whitehead,  L.  R.  i  C.  C.  R.  33.  [Wh.  Ev.  i.  §  393  ;  Gr.  Ev.  i. 
5i§  421,  422  ;  Lester  v.  McDowell,  18  Pa.  St.  91 ;  State  v.  Dantery,  48  Me. 
327  ;  Shurtlcff  v.  Willard,  19  Pick.  202  ;  Seeley  v.  Engell,  13  N.  Y.  542. 
But  if  the  incompetency  of  the  witness  is  known  when  he  is  called  and 
sworn,  objection  should  be  made  then,  or  it  will  ordinarily  be  deemed  to 
be  waived.  Motifort  v.  Rowland,  38  N.  J.  Eq.  181  ;  Quin  v.  IJoyd,  41  N. 
Y.  349  ;  Donelson  v.  Taylor,  8  Pick.  390;  U'atsou  v.  Riskatnire,  45  la.  231  ; 
Atchison,  etc.  R.  Co.  v.  Stanford,  12  Kan.  354  ;  see  Motley  v.  Head,  43 
Vt.  633. 

So  incompetent  or  improper  evidence  may  be  stricken  out  or  with- 
drawn from  the  jury  after  it  has  been  admitted.  Stokes  v.  Johnson,  57 
N.  Y.  673  ;  Specht  v.  Howard,  16  Wall.  564  ;  Selkirk  v.  Cobb,  13  Gray,  313  ] 


Chap.  XVI.]     THE  LAW  OF  EVIDENCE.  223 

Article  127. 

to  what  matters  cross-examination  and  re-examina- 
tion must  be  directed. 

The  examination  and  cross-examination  must  relate  to  facts 
in  issue  or  relevant  or  deemed  to  be  relevant  thereto,  but  the 
cross-examination  need  not  be  confined  to  the  facts  to  which 
the  witness  testified  on  his  examination  in  chief.' 

The  re-examination  must  be  directed  to  the  explanation  of 
matters  referred  to  in  cross-examination  ;  and  if  new  matter  is, 
by  permission  of  the  Court,  introduced  in  re-examination,  the 
adverse  party  may  further  cross-examine  upon  that  matter.' 


'  [See  Art.  126,  note  2.  But  it  is  the  rule  in  most  of  the  States  of  this 
country  that  the  cross-examination  must  be  limited  to  the  matters  stated 
in  the  examination  in  chief;  if  the  party  cross-examining  inquires  as  to 
new  matter,  he  makes  the  witness  so  far  his  own.  Houghton  v.  yones,  i 
Wall.  702  ;  People  v.  Oyer  &^  Term.  Court,  83  N.  Y.  436  ;  Hughes  v. 
Westmoreland  Co.,  104  Pa.  St.  207  ;  Hurlbut  v.  Meeker,  104  111.  541  ;  Don- 
nelly V.  Slate,  26  N.  J.  L.  463  &  601  ;  Aurora  v.  Cobb.,  21  Ind.  492  ;  Cokely 
V.  State,  4  la.  477 ;  Austin  v.  State,  14  Ark.  555  ;  PeopU  v.  Miller,  33  C.1I. 
99;  State  V.  Smith,  49  Ct.  376  ;  State  v.  Swayze,  30  La.  Ann.  1323  ;  see 
preceding  article.  If  the  bounds  of  a  proper  cross-examination  are  not 
exceeded,  the  witness  is  deemed  to  be  continually  that  of  the  party  intro- 
ducing him  ;  but  the  extent  to  which  such  examination  may  go  without 
overstepping  proper  bounds  is  somewhat  differently  defined  in  different 
States.  See  Wilson  v.  Wagar,  26  Mich.  452  ;  Haynes  v.  Ledyard,  33  Id. 
319  ;   Glenn  v.  Gleason,  61  la.  28  ;  and  cases  supra. 

This  rule  does  not  limit  cross-examination  of  the  kind  described  in  Art. 
129.     The  rule  there  stated  is  commonly  accepted  in  all  States.] 

2  [Gr.  Ev.  i.  $  467  ;  Gilbert  v.  Sage,  5  Lans.  287,  57  N.  Y.  639  ;  Button 
V.  IVuodman,  9  Cush.  255  ;  U.  S.  v.  18  Barrels.^  etc., 8  Blatch.  475  ;  Somer- 
Ti/le,  etc.  R.  Co.  v.  Doughty,  2  Zab.  495  ;  Koenig  v.  Bauer,  57  Pa.  St.  168. 
The  general  rule  that  the  re-examination  must  relate  to  matters  developed 
on  the  cross-examination  is  applied  very  strictly  in  some  States  (Sehaser 
V.  State,  36  Wis.  429),  but  in  others  the  trial  court  may,  in  its  discretion, 
allow  the  re-examination  to  extend  to  other  matters.  Kendall  \.  Weaver, 
I  Allen,  277  ;  Clark  v.  Vorce,  15  Wend.  193  ;  see  Hemmens  v.  Bentley,  32 
Mich.  89.     If  part  of  a  conversation  be  developed  on  the  direct  or  cross- 


224  A  DIGEST  OF  [Part  III. 

Article   128. 

leading  questions. 

Questions  suggesting  the  answer  which  the  person  putting  the 
question  wishes  or  expects  to  receive,  or  suggesting  disputed 
facts  as  to  which  the  witness  is  to  testify,  must  not,  if  objected 
to  by  the  adverse  party,  be  asked  in  an  examination  in  chief, 
or  a  re-examination,  except  with  the  permission  of  the  Court, 
but  such  questions  may  be  asked  in  cross-examination.' 


examination,  the  other  party  may,  on  the  cross  or  re-direct,  bring  out 
such  other  parts  of  the  same  conversation  as  explain  or  qualify  the  por- 
tion already  testified  to,  but  not  distinct  and  independent  statements. 
People  V.  Beach,  87  N.  Y.  508  ;  IValsh  v.  Porterfield,  87  Pa.  St.  376  ; 
Comm.  V.  Keyes,  11  Gray,  323  ;  Oakland  Ice  Co.  v.  Maxcy,  74  Me.  294. 
In  some  States  it  is  held  that  if  one  party,  without  objection,  introduces 
irrelevant  evidence,  which  is  prejudicial  to  the  other  party,  the  latter  may 
give  evidence  which  goes  directly  to  contradict  it.  State  v.  Withavi,  72 
Me.  531  ;  Alowry  v.  Smith,  9  Allen,  67 ;  Furbush  v.  Goodwin,  5  Post.  425  ; 
see  Teag-ue  v.  Irwin,  134  Mass.  303. 

The  party  who  opens  a  case  must,  in  general,  introduce  all  the  evidence 
to  prove  his  side  of  the  case  before  he  closes  ;  then  after  his  adversary's 
evidence  is  given,  he  may  give  proof  in  reply  or  rebuttal.  But  it  is  in  tlie 
discretion  of  the  court  to  permit  evidence  to  be  given  in  reply  which 
should  properly  have  been  given  in  chief.  Marshall  v.  Davis,  78  N.  Y. 
414  ;  Yoiings.  Edwards,  72  Pa.  St.  257  ;  Strong  v.  Connelly  115  Mass.  575  ; 
Graham  v.  Davis,  4  O.  St.  362  ;  State  v.  Alford,  31  Ct.  40  ;  Babcock  v. 
Babcock,  46  Mo.  243 ;  but  see  Clayes  v.  Ferris,  10  Vt.  112.] 

'  [Gr.  Ev.  i.  §§434.  435.  445  :  Wh.  Ev.  i.  %%  499-504.  But  such  ques- 
tions may  be  allowed  to  be  put  on  the  direct  examination  when  the  wit- 
ness appears  hostile  to  the  party  introducing  him,  or  when  the  examina- 
tion relates  to  items,  dates,  or  numerous  details,  where  the  memory  or- 
dinarily needs  suggestion,  or  when  it  is  necessary  to  direct  the  witness's 
attention  plainly  to  the  subject-matter  of  his  testimony,  etc.  Id.;  People 
V.  Mather,  4  Wend.  229  ;  State  v.  Benner,  64  Me.  267  ;  Hickins  v.  People' s 
Ins.  Co.,  11  Post.  238  ;  Doran  v.  Muller,  78  111.  342  ;  U.  S.  v.  Dickinson, 
2  McL.  325.  It  is  discretionary  with  the  court  whether  such  questions 
shall  be  permitted.  Vrootnan  v.  Griffiths,  i  Keyes,  53  ;  Farmers'  Ins.  Co. 
V.  Bairy  87  Pa.   St.  124  ;    York  v.  Pease,  2  Gray,  282.     As  to  what  is  a 


Chap.  XVI.]     THE  LAW  OF  EVIDENCE.  225 

Article  129.* 
questions  lawful  in  cross-examination. 

When  a  witness  is  cross-examined,  he  may,  in  addition  to 
the  questions  hereinbefore  referred  to,  be  asked  any  questions 
which  tend — 

(i)  To  test  his  accuracy,  veracity,  or  credibility  ;  or 

(2)  To  shake  his  credit,  by  injuring  his  character. 

Witnesses  have  been  compelled  to  answer  such  questions, 
though  the  matter  suggested  was  irrelevant  to  the  matter  in 
issue,  and  though  the  answer  was  disgraceful  to  the  witness  ; 
but  it  is  submitted  that  the  Court  has  the  right  to  exercise  a 
discretion  in  such  cases,  and  to  refuse  to  compel  such  ques- 
tions to  be  answered  when  the  truth  of  the  matter  suggested 
would  not  in  the  opinion  of  the  Court  affect  the  credibility  of 
the  witness  as  to  the  matter  to  which  he  is  required  to  testify. 


*  See  Note  XLVI. 
leading  question,  see  People  v.  Mather,  supra;  Harvey  v.  Osborn,  55  Ind. 
535  >    Walker  v.  Dnnspaugh,  20  N.  Y.  170  ;  People  v.  Parish,  4  Den.  153. 

In  those  States  where  a  party  by  cross-examining  a  witness  as  to  new 
matter  makes  the  witness  so  far  his  own  (see  Art.  127,  note  i),  he  cannot 
ask  leading  questions  as  to  such  new  matter.  People  v.  Oyer  er>  Term. 
Court,  83  N.  Y.  436  ;  Harrison  v.  Rowan,  3  Wash.  C.  C.  580  ;  contra, 
Moody  V.  Rowell,  17  Pick.  490 ;  see  Art.  126,  note  2.] 

'  [It  is  a  well-settled  doctrine  in  this  country  that  a  witness  may  be 
cross-examined  as  to  specific  facts  tending  to  disgrace  or  degrade  him, 
for  the  purpose  of  impairing  his  credibility,  though  these  facts  are  purely 
irrelevant  and  collateral  to  the  main  issue  ;  also  that  the  extent  to  which 
such  questions  may  be  allowed  is  to  be  determined  by  the  discretion  of 
the  trial  court,  which  commits  no  error  unless  it  abuses  its  discretion  ; 
that  the  witness  may  claim  the  privilege  of  declining  to  answer,  when  the 
court  allows  such  questions,  but  that  when  answers  are  called  for  which 
are  material  to  the  issue,  there  is  no  privilege.  I.ohtnan  v.  People,  i  N. 
Y.  379  ;  People  v.  Noelke,  94  N.  Y.  137  ;  Gutterson  v.  Morse,  58  N.  H. 
165  ;  Comm.  v.  People,  105  Mass.  163  ;  Stortnv.  U.  S.,  94  U.  S.  76  ;  RttS' 
ling  V.  Bray,  37  N.  J.  Eq.  174  ;  Marx  v.  Hilsendegen,  46  Mich.  336  ;  Miil- 
ler  V.  St.  Louis  Hospital  Ass'n,  73  Mo.  242  ;  Player  v.  Burlington,  etc.  R. 


526  A  DIGEST  OF  [Part  III. 

In  the  case  provided  for  in  article  120,  a  witness  cannot  be 
compelled  to  answer  such  a  question. 

Illustrations. 

(a)  The  question  was  whether  A  committed  perjury  in  swearing  that 
he  was  R.  T.  B  deposed  that  he  made  tattoo  marks  on  the  arm  of  R.  T. , 
which  at  the  time  of  the  trial  were  not  and  never  had  been  on  the  arm  of 
A.  B  was  asked  and  was  compelled  to  answer  the  question  whether, 
many  years  after  the  alleged  tattooing,  and  many  years  before  the  occa- 
sion on  which  he  was  examined,  he  committed  adultery  with  the  wife  of 
one  of  his  friends.' 

{b)  [On  the  trial  of  A  for  stealing  a  horse,  a  witness  B  was  asked  on 
cross-examination  whether  he  did  not  live  with  a  woman  who  kept  a  house 
of  ill-fame.  The  court  against  objection  admitted  the  question,  but  in- 
formed the  witness  that  he  could  answer  or  not  as  he  chose.]  * 

{c)  [Upon  the  trial  of  A  for  an  assault,  he  became  himself  a  witness  and 
was  asked  on  cross-examination  whether  he  had  not  committed  an  assault 
upon  another  person  at  another  time.  This  was  objected  to,  but  properly 
allowed  by  the  trial  court  within  its  discretion.]^ 


Co. ,  62  la.  723  ;  South  Bend  v.  Hardy.,  98  Ind.  577,  fully  discussing  the 
subject.  In  New  York  the  exercise  of  discretion  is  also  limited  by  the 
rule  that  the  examination,  when  not  pertinent  to  the  issue,  must  relate  to 
facts  which  tend  to  discredit  the  witness  or  impeach  his  moral  character ; 
and  questions  as  to  his  having  beer)  indicted,  arrested,  accused,  etc.,  for 
wrongful  acts  are,  when  properly  excepted  to,  held  improper,  since  these 
facts  are  consistent  with  innocence.  People  v.  Irving,  95  N.  Y.  541  ;  cf. 
Hayward  v.  People,  96  111.  492.  These  general  rules  apply  also  to  parties 
when  they  become  witnesses.  People  v.  Casey,  72  N.  Y.  393 ;  Chambers 
V.  State,  105  111.  409  ;  Root  v.  Ha^nilton,  105  Mass.  22  ;  Bisscll  v.  Starr, 
32  Mich.  299  ;  see  Illustrations. 

So  a  witness  may  be  cross-examined  as  to  facts  showing  his  favor  to- 
wards the  party  calling  him,  or  his  bias,  malice,  ill-will,  prejudice,  etc., 
against  the  opposite  party.  Here,  also,  the  judge's  discretion  governs 
the  range  of  examination.  Wallace  v.  Tautiton  St.  Railway,  119  Mass. 
91  ;  Batdorff  v.  Farmers'  Nat.  Bk. ,  61  Pa.  St.  179  ;  Schttltz  v.  Third 
Av.  R.  Co. ,  89  N.  Y.  242  ;  Howard  v.  Patrick,  43  Mich.  121  ;  see  next 
article.] 

'  R.  V.  Orton.     See  summing-up  of  Cockburn,  C.  J.,  vol.  ii.  p.  719,  etc. 

'  [State  v.  Ward,  49  Ct.  429  ;  see  Real  v.  People,  42  N.  Y.  270,  272  ;  the 
witness  is  not  obliged  to  explain  why  he  declines  to  answer.  Merluzzi  v. 
Gleeson,  59  Md.  214.]  ^  [People  v.  Irving,  95  N.  Y.  541.] 


Chap.  XVI.]     THE  LAW  OF  EVIDENCE.  227 


((/)  [Upon  the  tria  of  A  for  murder,  he  became 'himself  a  witness  and 
was  asked  on  cross-examination  whether  he  had  not  once  been  arrested 
for  an  assault  with  intent  to  kill.  The  court  against  objection  admitted 
the  question,  and  the  witness  then  answered  without  claiming  his  privi- 
lege.    This  was  held  a  proper  exercise  of  the  court's  discretion.] ' 

(<•)  [A  witness  was  asked  on  cross-examination  in  a  civil  action  as  to  his 
belief  in  spiritualism.  It  was  a  proper  exercise  of  discretion  not  to  allow 
the  question.]* 


Article   130. 

exclusion  of  evidence  to  contradict  answers  to 
questions  testing  veracity. 

When  a  witness  under  cross-examination  has  been  asked  and 
has  answered  any  question  which  is  relevant  to  the  inquiry 
only  in  so  far  as  it  tends  to  shake  his  credit  by  injuring  his 
character,  no  evidence  can  be  given  to  contradict  him,'  except 
in  the  following  cases  : — 

(i)  If  a  witness  is  asked  whether  he  has  been  previously 
convicted  of  any  felony  or  misdemeanor,  and  denies  or  does 


'  [Ha>ioffy.  State,  37  O.  St.  178  ;  S.  P.  Lelaud\.  Knaiith,  47  Mich.  508  ; 
People  V.  Mannings  48  Cal.  335  ;  contra,  People  v.  Crapo,  76  N.  Y.  288  ; 
see  note  i,  siipra.'\ 

^  [Free  v.  Buckinghatn,  59  N.  H.  219.] 

3  A.  G.  V.  Hitchcock,  i  E.x.  91,  99-105.  See,  too,  Palmer  v.  Trower,  8 
Ex.  247.  [Gr.  Ev.  i.  $  449  ;  Conley  v.  Meeker,  85  N.  Y.  618  ;  People  v. 
Knapp,  42  Mich.  267 ;  Elliott  v.  Boyles,  31  Pa.  St.  65.  It  is  a  general  rule 
as  to  all  collateral  and  irrelevant  inquiries,  whether  relating  to  character 
or  not,  that  the  answers  given  cannot  be  contradicted  ;  the  cross-examin- 
ing counsel  is  bound  by  the  answers  given  ;  the  reason  of  the  rule  is  that 
time  may  not  be  taken  up  with  immaterial  issues.  Shiirtleffw.  Parker, 
130  Mass.  293;  Hester  v.  Comm.,  85  Pa.  St.  139;  Leavitt  v.  Stansell,  44 
Mich.  267  ;  Sloan  v.  F.dwards,  61  Md.  89  ;  Moore  v.  People,  108  111.  484  ; 
State  V.  Benner,  64  Me.  267  ;  Furst  v.  Second  Av.  R.  Co. ,  72  N.  Y.  542  ; 
see  Illustrations  (a)  and  (fi).] 


J28  A  DIGEST  OF  [Part  III. 


not  admit  it,  or  refuses  to  answer,  evidence  may  be  given  of 
his  previous  conviction  thereof.^ 

(2)  If  a  witness  is  asked  any  question  tending  to  show  that  he 
is  not  impartial,  and  answers  it  by  denying  the  facts  suggested, 
he  may  be  contradicted.^ 

Illustrations. 

{a)  [On  the  trial  of  A  for  murder,  a  female  witness  B  is  asked  on  cross- 
examination  whether  she  took  things  not  belonging  to  her  when  she  left  a 
place  w-here  she  had  been  at  service.  It  cannot  be  shown  by  another 
witness  that  her  answer  is  untrue.]  ^ 

{b)  [The  question  is  whether  two  persons  were  jointly  interested  in  buy- 
ing and  selling  cattle.  One  of  them  becomes  a  witness  and  is  questioned 
as  to  their  being  jointly  interested  in  a  particular  purchase  and  sale  of 
horses^  and  answers  that  they  were.   This  answer  cannot  be  contradicted.]  * 

\c)  [A  witness  called  by  A  in  a  suit  between  A  and  B,  testifies  that  he 
has  never  threatened  revenge  against  B.  He  may  be  contradicted  on  this 
point  by  other  testimony. ]5 


'  28  &  29  Vict.  c.  18,  s.  6.  [At  common-law,  conviction  for  crime  must 
be  proved  by  the  record  thereof  or  by  a  duly  authenticated  copy,  and  not 
by  cross-examination  (Gr.  Ev.  i.  §§  375,  457  ;  Newconib  v.  Griswold,  24 
N.  Y.  298)  ;  and  this  is  still  the  general  rule  in  this  country.  State  v. 
Lewis,  80  Mo.  no.  So  now,  in  some  States,  where  conviction  for  crime 
no  longer  disqualifies  a  witness,  but  may  be  proved  to  affect  credibility 
(see  Art.  107,  supra,  note),  proof  must  still  be  made  by  the  record.  Mass. 
Pub.  St.,  c.  169,  §  19;  Comm.  v.  Gorhani^  99  Mass.  420,  Gen.  Laws  N. 
H.,  c.  228,  §  27  (ed.  1878).  But  in  other  States,  either  the  record  may  be 
used,  or  the  witness  may  be  cross-examined  as  to  his  conviction  (111.  Rev. 
St.,  c.  51,  §  I  (ed.  1883)  ;  Neb.  Code  Civ.  Pro.  %  338  ;  Driscoll  v.  People, 
47  Mich.  413)  ;  and  in  some  States  his  answers  upon  such  examination 
may  be  contradicted.  N.  Y.  Code  Civ.  Pro.  832  ;  N.  J.  Rev.,  p.  378,  §  i, 
379.  %  9;  Wis.  Rev.  St.,  §  4073  (ed.  1878).] 

"^  A.  G.  V.  Hitchcock,  i  Ex.  91,  pp.  100,  105  ;  [Gr.  Ev.  i.  ^  450  ;  Day  v. 
Siiciney,  14  Allen,  255  ;  Schultz  v.  Third  Av.  R.  Co.,  89  N.  Y.  242  ;  Phe- 
nix  V.  Castner,  108  111.  207;  Folsotn  v.  Brawn,  5  Fost.  114;  Geary  v. 
People,  22  Mich.  220  ;  see  Illustration  (r).] 

3  \_Stokes  V.  People,  53  N.  Y.  164.] 

^  [Farniim  v.  Farniiin,  13  Gray,  508.] 

^  \_ColHns  V.  Stephenson,  8  Gray,  438.] 


Chap.  XVI.]     THE  LAW  OF  EVIDENCE. 


Article  131.* 

statements  inconsistent  with  present  testimony  may 
be  proved. 

Every  witness  under  cross-examination  in  any  proceeding, 
civil  or  criminal,  may  be  asked  whether  he  has  made  any  for- 
mer statement  relative  to  the  subject-matter  of  the  action  and 
inconsistent  with  his  present  testimony,  the  circumstances  of 
the  supposed  statement  being  referred  to  sufficiently  to  desig- 
nate the  particular  occasion,  and  if  he  does  not  distinctly  ad- 
mit that  he  has  made  such  a  statement,  proof  may  be  given 
that  he  did  in  fact  make  it.' 


*  See  Note  XLVII. 
'  [A  similar  rule  is  in  force  here  in  most  States.  It  only  applies  when 
the  testimony  to  be  contradicted  is  relevant  to  the  issue.  Gr.  Ev.  i.  %  462  ; 
Conrad  v.  Griffey,  16  How.  (U.  S.)  38  ;  Hart  v.  Hudson  River  Bridge 
Co. ,  84  N.  Y.  56  ;  Pittsburg-,  etc.  R.  Co.  v.  Andrews,  39  Md.  329  ;  Haley 
V.  State,  63  Ala.  83,  85  ;  Lawler  v.  McPheeters,  73  Ind.  577  ;  Bock  v.  Wei- 
gant,  5  Bradw.  643  ;  Dufresne  v.  Wcise,  46  Wis.  290  ;  State  v.  Grant,  79 
Mo.  113  ;  Cole  V.  State,  6  Baxt.  239  ;  People  v.  Devine.,  44  Cal.  452  ;  Hor- 
ton  V.  Ckadhourn.^  31  Minn.  322  ;  Sheppard  v.  Yocum,  10  Or.  402  ;  State  v. 
McLaughlin,  44  la.  82.  The  rule  applies  to  parties,  when  they  become 
witnesses.  Kelsey  v.  Layne,  28  Kan.  218.  Usually  the  time  and  place  of 
the  supposed  statement  and  the  persons  to  whom  or  in  whose  presence  it 
was  made  should  be  brought  to  the  witness's  attention  in  cross-examin- 
ing him  (see  cases  stipra)  ;  but  it  is  sufficient  if  the  particular  occasion  is 
otherwise  designated  with  reasonable  certainty.  Alayer  v.  Appel,  13 
Bradw.  87  ;  Pendleton  v.  Empire,  etc.  Co.,  19  N  Y.  13.  The  object  is  to 
give  the  witness  a  chance  to  explain  the  alleged  inconsistency  ;  if  this  be 
not  done,  the  evidence  offered  to  show  the  contradiction  is  not  admis- 
sible. See  Illustration  [a)  and  cases  supra.  The  rule  is  usually  applied 
when  the  witness  denies  making  the  statement,  but  that  it  also  applies 
when  he  does  not  recollect  making  it  is  declared  in  Payne  v.  State,  60  Ala. 
80  ;  Ind.  Rev.  St.,  ^  508  (ed.  1881).  But  testimony  as  to  matters  ai  fact 
cannot  be  impeached  by  proving  the  expression  of  opinions  inconsistent 
therewith.  Gr.  Ev.  i.  $  449  ;  Sloan  v.  Edwards,  61  Md.  89  ;  Holmes  v. 
Anderson,  18  Barb.  420.     As  to  the  mode  of  questioning  the  impeaching 


230  A  DIGEST  OF  [Part  III. 

The  same  course  may  be  taken  with  a  witness  upon  his  ex- 
amination in  chief,  if  the  judge  is  of  opinion  that  he  is  "ad- 
verse "  {i.e.  hostile)  to  the  party  by  whom  he  was  called,  and 
permits  the  question.' 


witness,  see  Sloan  v.  A''.  Y.  C.  R.  Co.,  45  N.  Y.  125  ;  Fanners'  Ins.  Co. 
V.  Bair,  87  Pa.  St.  124. 

In  some  States,  however,  a  witness's  contradictory  statements  can  be 
proved  without  thus  calling  his  attention  to  them  on  cross-examination. 
Comtn.  V.  Hawkins,  3  Gray,  463  ;  Wilkitis  v.  Babbershall,  32  Me.  184  ; 
Cook  v.  Brown,  34  N.  H.  460  ;  Tomlinson  v.  Derby,  43  Ct.  562.  But  he 
may  be  recalled  to  explain  the  alleged  inconsistency.  Gould  v.  Norfolk 
Lead  Co.,  9  Cush.  338  ;  Hedge  v.  Clapp,  22  Ct.  262  ;  see  Harrison  s  Ap- 
peal, 48  Ct.  202. 

In  Pennsylvania,  it  rests  in  the  discretion  of  the  trial  court,  whether  the 
witness  may  be  contradicted  without  being  cross-examined  as  to  the  in- 
consistent statements  {Rothrock  v.  Gallahcr,  91  Pa.  St.  108)  ;  and  so  in 
Vermont  (State  v.  Glynn,  51  Vt.  577) .] 

'  [This  is  by  an  English  statute  (see  Note  XLA'II,  Appendix),  but  it  is 
a  general  rule  of  the  common-law  that  a  party  cannot  impeach  his  own  wit- 
ness, by  proving  either  his  general  bad  character  or  his  former  statements 
inconsistent  with  his  testimony  (^Adams  v.  Wheeler,  97  Mass.  67),  and  this 
is  still  true  in  most  States.  Gr.  Ev.  i.  §  442  ;  Pollock  v.  Pollock,  71  N.  Y. 
137;  Cox  v.  Sayres,  55  Vt.  24;  Stearns  v.  MercTiants''  Bk.,  53  Pa.  St.  490; 
People  v.  yacobs,  49  Cal.  384.  But  he  may  prove  the  true  facts  of  the 
case  by  other  witnesses,  though  this  may  incidentally  discredit  the  witness. 
Coulter  V.  Amer.  Exp.  Co.,  56  N.  Y.  585  ;  Sewell  v.  Gardner,  48  Md.  178  ; 
Dowdell  V.  Wilcox,  58  la.  199  ;  Smith  v.  Ehanert,  43  Wis.  181  ;  Pa.  K. 
Co.  v.  Fortney,  90  Pa.  St.  323.  The  rule  has  even  been  applied  to  the 
case  where  a  party  makes  a  witness  his  own  by  cross-examining  him  as 
to  new  matter.  Fairchild  v.  Bascom,  35  Vt.  398  ;  cf  Green  v  Rice,  i  J. 
&  Sp.  292  ;  Artzv.  Railroad  Co.,  44  la.  284  ;  see  Art.  127,  note  i,  supra. 
But  where  the  witness  is  one  whom  the  law  obliges  the  party  to  call,  as 
the  subscribing  witness  to  a  deed  or  will,  he  may  impeach  him  by  show- 
ing contradictory  statements  {Thornton's  F.xcrs.  v.  Thornton's  Heirs,  39 
Vt.  122  ;  Shorey  v.  Hussey,  32  Me.  579  ;  but  see  Whitaker  v.  .Salisbury,  15 
Pick.  534)  ;  and  so  where  the  witness  is  also  the  opposing  party.  Bru- 
baker's  Adm'r.  v.  Taylor,  76  Pa.  St.  83 ;  N.  H.  Gen.  Laws,  c.  228,  §  15 
(ed.  1878)  ;  but  see  Green  v.  Rice,  supra;  Warren  v.  Gabriel,  51  Ala. 
235.  Even  if  the  party  calling  a  witness  is  surprised  by  testimony 
contrary  to  what  was  expected,  he  still  cannot  impeach  the  witness  by 


Chap.  XVI.]     THE  LAW  OF  EVIDENCE.  231 

Illustration, 
[a)  [In  a  civil  action  a  deposition  of  A,  who  was  absent  at  sea,  was  read 
in  evidence  by  the  plaintiff  The  defendant  then  offered  to  prove  by  a 
witness  B,  that  the  latter  had  had  a  number  of  conversations  with  A 
several  months  after  the  deposition  was  taken,  in  which  A  made  state- 
ments inconsistent  with  his  testimony  and  said  that  what  he  had  sworn  to 
was  false.  The  court  would  not  receive  B's  testimony,  because  A,  while 
being  examined,  had  not  Ijeen  questioned  about  the  alleged  conversations, 
and  had  not,  therefore,  had  an  opportunity  to  explain  the  alleged  contra- 
dictions. Had  such  opportunity  been  given,  B's  testimony  would  be 
receivable.  ]> 

Article  132. 
cross-examination  as  to  previous  statements  in 

WRITING. 

A  witness  under  cross-examination  (or  a  witness  whom  the 
judge  under  the  provisions  of  article  131  has  permitted  to  be 
examined  by  the  party  who  called  him  as  to  previous  state- 
ments inconsistent  with  his  present  testimony)  may  be  ques- 
tioned as  to  previous  statements  made  by  him  in  writing,  or 
reduced  into  writing,  relative  to  the  subject-matter  of  the 
cause  without  such  writing  being  shown  to  him  (or  being  proved 
in  the  first  instance);  but  if  it  is  intended  to  contradict  him  by 
the  writing,  his  attention  must,  before  such  contradictory  proof 
can  be  given,  be  called  to  those  parts  of  the  writing  which  are 


evidence  of  his  bad  character  or  inconsistent  statements  ;  but  he  may  ex- 
amine the  witness  himself  as  to  such  statements,  recalling  them  plainly 
to  his  mind,  and  thus  make  it  apparent  to  the  court  that  the  witness  dis- 
appoints him,  and  give  the  latter  a  chance  to  explain,  if  possible,  the  ap- 
parent inconsistency  {Bullard  v.  Pearsall^  53  N.  Y.  230  ;  Nemhr^cav  v. 
Garth,  51  Ala.  530  ;  cf.  yohnson  v.  Leggett,  28  Kan.  591  ;  Stearns  v.  Mer- 
chants' Bk. ,  53  Pa.  St.  490)  ;  so  he  may  prove  the  truth  by  other  evidence. 
Id.;  State  v.  Knight,  43  Me.  11,  134. 

There  are  statutes  in  some  States,  as  in  England,  permitting  a  party  to 
impeach  his  witness.  Ind.  Rev.  St.,  %  507  (ed.  1881)  ;  Mass.  Pub.  St.,  c. 
169,  §  2  ;  Ryerson  v.  Abington,  102  Mass.  526.] 

'  \Stacy  v.  Graham,  14  N.  Y.  492  ;  S.  P.  Runyan  v.  Price,  15  O.  St.  1.] 


232  A  DIGEST  OF  [Part  III. 


to  be  used  for  the  purpose  of  contradicting  him.  The  judge 
may,  at  any  time  during  the  trial,  require  the  document  to  be 
produced  for  his  inspection,  and  may  thereupon  make  such 
use  of  it  for  the  purposes  of  the  trial  as  he  thinks  fit.' 

Article  133. 
impeaching  credit  of  witness. 

The  credit  of  any  witness  may  be  impeached  by  the  adverse 
party,  by  the  evidence  of  persons  who  swear  that  they,  from 
their  knowledge  of  the  witness,  believe  him  to  be  unworthy  of 
credit  upon  his  oath.''    Such  persons  may  not  upon  their  exami- 


'  17  &  18  Vict.  c.  125,  s.  24  ;  and  28  Vict.  c.  18,  s.  5.  I  think  the  words 
in  parenthesis  represent  the  meaning  of  the  sections,  but  in  terms  they 
apply  only  to  witnesses  under  cross-examination — "Witnesses  may  be 
cross-examined,"  etc.  [The  statutory  rule  of  this  article  is  not  followed 
in  this  country,  but  the  former  English  rule,  laid  down  in  the  Queen's 
Case,  2  B.  &  B.  286.  The  witness  must  not  be  questioned  as  to  the  state- 
ments made  by  him  in  a  letter  or  other  writing,  without  showing  it  to  him. 
It  should  be  exhibited  to  him,  and  he  be  asked  whether  he  wrote  it,  and 
if  he  assents,  the  writing  should  then  itself  be  read  in  evidence  as  the 
best  evidence  of  its  contents.  Gr.  Ev.  i.  §$463-465  ;  Morfordv.  Peck,  46 
Ct.  380;  Gaffney  v.  People,  50  N.  Y.  416  ;  De  May  v.  Roberts,  46  Mich. 
160  ;  Glenn  v.  Gleason,  61  la.  28  ;  Strong  v.  Lord,  8  Bradw.  539  ;  State  v. 
Stein,  79  Mo.  330  ;  Norton  v.  Chadbourn,  31  Minn.  322  ;  Leonard  \.  Kings- 
Icy,  50  Cal.  628.  But  cross-examining  counsel  need  not  put  it  in  evidence 
until  he  has  opened  his  own  case  {Romertze  v.  East  River  Bk.,  49  N.  Y. 
577)  ;  but  the  court  may  vary  this  order  of  proof 

It  is  proper  to  ask  a  witness  who  has  testified  to  the  making  of  a  con- 
tract, whether  the  contract  was  in  writing,  but  then,  if  he  assents,  the  con- 
tract should  be  identified.      Gregory  v.  Morris,  96  U.  S.  619.] 

'^  [It  is  a  well-settled  rule  in  this  country  that  a  witness  of  the  adverse 
party  may  be  impeached  by  evidence  from  other  persons  of  his  bad  gen- 
eral reputation  in  his  own  community.  The  impeaching  witnesses  must 
come  from  this  community,  and  in  examining  any  one  of  them  the  form 
of  inquiry  usually  is  to  ask  (i)  whether  he  knows  the  general  reputation 
in  that  community  of  the  witness  in  question  ;  then,  if  he  assents,  (2)  what 
that  reputation  is,  and  (3)  whether  from  such  knowledge  he  would  believe 


Chap.  XVI.]     THE  LAW  OF  EVIDENCE.  233 

nation  in  chief  give  reasons  for  their  belief,  but  they  may  be 
asked  their  reasons  in  cross-examination,  and  their  answers 
cannot  be  contradicted.' 


such  witness  on  his  oath.  Gr.  Ev.  i.  $  461  ;  Sloan  v.  Edwards,  6i  Md.  89, 
103  ;  Bogle  s  Excrs  v.  Kreitzer,  46  Pa.  St.  465  ;  Wright  v.  Paige,  3  Keyes, 
581 ;  in  Massachusetts  it  is  discretionary  with  the  trial  court  whether  the 
first  question  shall  be  asked,  Wetherbee  v.  Norris,  103  Mass.  565.  The 
inquiry  must  only  be  as  to  general  reputation^  not  as  to  specific  wrongful 
acts.  Wehrkamp  v.  Willet,  4  Abb.  Dec.  548  ;  Comtn.  v.  Lawler,  12  Allen, 
585;  seeA'nodev.  IVilliamson,  17  Wall.  sS6.  The  reputation  asked  about 
must  be  in  most  States  for  t/itt/i  and  veracity  {Sargent  v.  Wilson,  59  N. 
H.  396  ;  Shaw  v.  Emery,  42  Me.  59  ;  Amidon  v.  Hosley,  54  Vt.  25  ;  Quin- 
sigamond  Bk.  v.  Hobbs,  11  Gray,  250;  State  v.  Randolph,  24  Ct.  ■^(tj,  ;  At- 
wood  V.  Impsoti,  20  N.  J.  Eq.  150  ;  Warner  v.  Lockerhy,  31  Minn.  421  ; 
Hillis  V.  Wylie,  26  O.  St.  574  ;  U.  S.  v.  Fan  Sickle,  2  McL.  219  ;  Laclede 
Bk.  V.  Keeler,  109  111.  385  ;  Bogle' s  Excrs  v.  Kreitzer,  supra ;  Lenox  v. 
Fuller,  39  Mich.  268  ;  see  Teesev.  Huntingdwi,  23  How.  (U.  S.)  2)  ;  but  in 
some  States  it  is  ior  general  moral  character  {State  v.  Grant,  79  Mo.  113  ; 
Walton  V.  State,  88  Ind.  9  ;  State  v.  Egan,  59  la.  636)  ;  in  New  York  either 
form  is  allowable  {Dollner  v.  Lintz,  84  N.  Y.  669  ;  Wright  v.  Paige,  3 
Keyes,  581) ;  in  California  the  question  is  as  to  truth,  honesty,  and  integ- 
rity (^People  V.  Markhain,  64  Cal.  157).  In  most  States  also  the  third 
question  (as  to  belief  on  oath)  is  asked  (f/.  S.  v.  Van  Sickle.,  2  McL.  219  ; 
Lyman  v.  Philadelphia,  56  Pa.  St.  488  ;  Hamilton  v.  People,  29  Mich.  173, 
184  ;  Titus  V.  Ash,  4  Post.  319  ;  Knight  v.  House,  29  Md.  194  ;  Eason  v. 
Chapman,  21  111.  33  ;  Wilson  v.  State,  3  Wis.  798  ;  Hillis  v.  Wylie,  26  O. 
St.  S75,  which  see  for  other  cases)  ;  in  New  York  and  Illinois  it  is  per- 
missible, but  not  necessary,  (People  v.  Mather,  4  Wend.  229  ;  Wright  v. 
Paige,  3  Keyes,  581  ;  Laclede  Bk.  v.  Keeler,  109  111.  385  ;  and  see  People 
V.  Tyler,  35  Cal.  553)  ;  but  in  a  few  States  it  is  not  allowable.  Walton  v. 
State,  88  Ind.  9  ;  State  v.  Rush,  77  Mo.  519  ;  cf.  King  v.  Rucktnan,  20  N. 
J.  Eq.  316. 

When  a  party  is  a  witness  he  may  be  impeached  like  other  witnesses. 
Foster  v.  Newbrough,  58  N.  Y.  481  ;  Wright  v.  Hanna,  98  Ind.  217  ;  Peo- 
ple V.  Beck,  58  Cal.  212. 

The  inquiry  may  be  as  to  the  impeached  witness's  reputation  either 
before  or  after  the  time  of  his  own  e.xamination,  as  w-ell  as  at  the  time, 
if  not  too  remote.  Dollner  v.  Lintz,  84  N.  Y.  669  ;  Graham  v.  Chrystal, 
C  Abb.  Dec.  263     Amidon  v.  Hosley,  54  Vt.  25.] 

'  2  Ph.  Ev.  503-4 ;  T.  E.  ss.  1324-5.  [An  impeaching  witness  may  be 
«ross-examined  as  to  his  means  of  knowledge,  the  grounds  of  his  unfavor- 


234  A  DIGEST  OF  [Part  III. 

No  such  evidence  may  be  given  by  the  party  by  whom  any 
witness  is  called,'  but  when  such  evidence  is  given  by  the  ad- 
verse party,  the  party  who  called  the  witness  may  give  evidence 
in  reply  to  show  that  the  witness  is  worthy  of  credit. - 


able  opinion,  etc.  (People  v.  Mather,  4  Wend.  229,  258  ;  Gtilerette  v.  Mc- 
Kinley,  27  Hun,  320  ;  Bates  v.  Barber,  4  Cush.  107),  or  his  own  general 
reputation  may  be  attacked  {Phillips  v.  Thorn,  84  Ind.  84  ;  Starks  v. 
People,  5  Den.  106),  or  his  contradictory  statements  proved  {State  v. 
Lawlor,  28  Minn.  216).  So  a  sustaining  witness  may  be  cross-examined. 
Stape  V.  People,  85  N.  Y.  390.] 

'  17  &  18  Vict.  c.  125,  s.  2  ;  and  28  Vict.  c.  18,  s.  3  ;  [see  page  230,  note 
I,  anteJ] 

^  2  Ph.  Ev.  504.  [There  are  several  modes  of  sustaining  an  impeached 
witness  :  (i)  If  his  general  reputation  is  impeached,  other  witnesses  may 
be  called  from  his  community  to  show  that  such  reputation  is  good,  and 
(in  most  States)  that  they  would  believe  him  on  oath.  They  are  e.xam- 
ined  in  much  the  same  way  as  impeaching  witnesses.  Hamilton  v.  People, 
29  Mich.  173,  184  ;  Sloan  v.  Edivards,  61  Md.  89  ;  State  v.  Nelson,  58  la. 
2o8  ;  Comm.  v.  Ingraham,  7  Gray,  146  ;  Morss  v.  Palmer,  15  Pa,  St.  51  ; 
Stape  v.  People,  85  N.  Y.  390  ;  see  Adams  v.  GreemvicA  Ins.  Co. ,  70  N.  Y. 
166.  The  court  may,  in  its  discretion,  limit  the  number  of  impeaching 
and  of  sustaining  witnesses.  Bunnell  v.  Butler, ■z^d.  65  ;  Bissell  v.  Cor- 
nell, 24  Wend.  354. 

(2)  If  the  witness  is  impeached  by  evidence  of  his  inconsistent  state- 
ments (see  Art.  131),  he  may  in  a  few  States  be  sustained  by  evidence 
of  his  good  general  reputation  for  truth  {Sweet  v.  Sherman,  20  Vt.  23  ; 
Clark  v.  Bo7id,  29  Ind.  555 ;  Isler  v.  Dewey,  71  N.  C.  14  ;  Haley  v. 
State,  63  Ala.  83)  ;  but  in  other  States  this  is  not  permitted.  Brown 
V.  Mooers,  6  Gray,  451  ;  Webb  v.  State,  29  O.  St.  351  ;  Wertz  v.  May, 
21  Pa.  St.  274  ;  Frost  v.  McCargar,  29  Barb.  617  ;  Sheppard  v.  Yocum, 
10  Or.  402,  citing  other  cases.  Such  proof  of  good  reputation  has  also 
been  received  to  rebut  evidence  of  the  witness's  conviction  for  crime 
(Gertz  v.  Fitchburg  R.  Co.,  137  Mass.  77  ;  Webb  v.  State,  29  O.  St.  351  ; 
People  V.  Amanacns,  50  Cal.  233),  or  to  rebut  evidence  tending  to  charge 
him  with  crime  or  other  moral  turpitude  ( Tedens  v.  Schu7ners,  14  Bradw. 
607  ;  People  v.  Ah  Fat,  48  Cal.  61  ;  Afosley  v.  Vermont,  etc.  Ins.  Co. ,  55 
Vt.  142  ;  but  see  People  v.  Gay,  7  N.  Y.  378)  ;  but  it  is  not  received  to 
sustain  a  witness  simply  because  the  testimony  of  other  witnesses  has 
contradicted  his  own  {Ativood  w.  Dearborn,  I  Allen,  483;  State  v.  Ward, 
49  Ct.  429  ;  Brown  v.   Campbell,  86  Ind.  516 ;  Starks  v.  People,  5  Den, 


Chap.  XVI. J     THE  LAW  OF  EVIDENCE,  235 


Article   134. 

offences  against  women. 

When  a  man  is  prosecuted  for  rape  or  an  attempt  to  ravish, 
it  may  be  shown  that  the  woman  against  whom  the  offence  was 
committed  was  of  a  generally  immoral  character,  although  she 
is  not  cross-examined  on  the  subject'  The  woman  may  in 
such  a  case  be  asked  whether  she  has  had  connection  with  other 
men,  but  her  answer  cannot  be  contradicted.'  She  may  also 
be  asked  whether  she  has  had  connection  on  other  occasions 
with  the  prisoner,  and  if  she  denies  it  she  (probably)  may  be 
contradicted.' 


106 ;  but  see  Davis  v.  State,  38  Md.  15)  ;  but  in  Virginia  it  seems  to  be 
received,  in  whatever  way  a  witness  may  be  impeached  or  contradicted. 
George  v.  Pitcher,  28  Gratt.  299. 

(3)  It  is  not  in  general  permissible  to  support  a  witness  by  evidence 
that  he  has  made  former  statements  similar  to  his  testimony.  Gr.  Ev.  i. 
$469;  Powers  V.  Cary,  64  Me.  10;  Reed  v.  Spaulding,  42  N.  H.  114; 
Conrad  \.  Griffey,  11  How.  (U.  S. )  480;  Robb  v.  Hackley,  23  Wend.  50; 
and  cases  infra.  But  when  his  testimony  is  charged  to  have  been  given 
under  the  influence  of  some  improper  or  interested  motive,  or  to  be  a 
recent  fabrication,  and  in  other  like  cases,  it  may  be  shown  that  he  made 
similar  statements  before  the  motive  existed,  or  before  there  could  have 
been  any  inducement  to  fabricate.  Herrick  v.  Smith,  13  Hun,  446  ;  Stolp 
V.  Blair,  68  111.  541  ;  Hester  v.  Comm.,  85  Pa.  St.  139  ;  Comm.  v.  fenkin^, 
10  Gray,  485  ;  People  v.  Doyell,  48  Cal.  85  ;  State  v.  Hendricks,  32  Kan. 
S59  ;  see  State  v.  Dennin,  32  Vt.  158.  In  some  States  such  evidence  seems 
to  be  received  whenever  it  is  attempted  to  discredit  a  witness  by  proof 
of  his  inconsistent  statements.  Dodd  v.  Moore,  92  Ind.  397 ;  State  v. 
Grant,  79  Mo.  113  ;  see  Carter  v.  Carter,  79  Ind.  466.] 

'  R.  v.  Clarke,  2  Star.  241. 

»  R.  V.  Holmes,  L.  R.  i  C.  C.  R.  334. 

'  R.  V.  Martin,  6  C.  &  P.  562,  and  remarks  in  R.  v.  Holmes,  p.  337,  per 
Kelly,  C.  B.  [The  cases  in  this  country  are  agreed  that  the  woman's 
bad  general  character  for  chastity  may  be  proved  by  witnesses,  and  also 
that  she  may  be  examined  as  to  her  previous  connection  with  the  pris- 
oner. Gr.  Ev.  iii.  §  214  ;  Conkey  v.  People,  I  Abb.  Dec.  418  ;  Woods  v. 
People,  55  N,  Y.  515  ;  Stai^  v.  Forshner,  43  N.  H.  89  j  and  cases  infra,. 


236  A  DIGEST  OF  [Part  III. 


Article  135. 

what  matters  may  be  proved  in  reference  to  decla- 
rations relevant  under  articles  25-32. 

Whenever  any  declaration  or  statement  made  by  a  deceased 
person  relevant  or  deemed  to  be  relevant  under  articles  25-32, 
both  inclusive,  or  any  deposition  is  proved,  all  matters  may  be 
proved  in  order  to  contradict  it,  or  in  order  to  impeach  or  con- 
firm the  credit  of  the  person  by  whom  it  was  made,  which  might 
have  been  proved  if  that  person  had  been  called  as  a  witness, 


But  they  disagree  as  to  whether  particular  acts  of  connection  with  other 
men  can  be  proved.  In  many  States  the  right  to  prove  such  acts  is  de- 
nied, either  by  her  own  examination  or  by  the  evidence  of  witnesses 
{Comm.  V.  Harris,  131  Mass.  336;  State  v.  Forshncr,  supra;  Mc Combs  v. 
State,  8  O.  St.  643  ;  Richie  v.  State,  58  Ind.  355  ;  State  v.  White,  35  Mo. 
500  ;  State  v.  Turner,  I  Houst.  C.  C.  76),  but  in  some  States  such  proof 
is  competent  {State  v.  Heed,  39  Vt.  417,  permitting  it  by  cross-exami- 
nation ;  Benstine  v.  State,  2  Lea,  169,  holding  both  modes  of  proof  al- 
lowable, and  so  People  v.  Benson,  6  Cal.  221  ;  cf.  Strang  v.  People,  24 
Mich.  i).  In  New  York  the  decisions  are  conilicting  (  Woods  v.  People,  55 
N.  Y.  515),  but  in  a  civil  action  for  assault  with  intent  to  ravish,  such 
evidence  has  been  received  in  mitigation  of  damages.  Gulerette  v.  Mc- 
Kinley^  27  Hun,  320  ;  cf.   Watry  v.  Ferber,  18  Wis.  501. 

In  actions  for  seduction,  the  woman's  bad  character  for  chastity  may  be 
shown  (see  Art.  57,  note,  ante),  but  she  cannot  be  cross-examined  as  to 
acts  of  intercourse  with  other  men  than  the  seducer  {Hoffman  v.  Kemerer, 
44  Pa.  St.  453  ;  Doyle  v.  jfessup,  29  111.  460;  Smith  v.  Yaryan,  69  Ind. 
445  ;  but  see  Wandell  v.  Edwards,  25  Hun,  498  ;  So7ith  Bend  v.  Hardy, 
98  Ind.  577,  582),  unless  a  child  is  born  and  its  paternity  is  in  question  ; 
(see  Smith  v.  Yarya7i).  But  some  cases  hold  that  such  acts  may  be  proved 
by  the  testimony  of  the  men  themselves.  Gr.  Ev.  ii.  $  577  ;  Ford  v. 
yones,  62  Barb.  484  ;    White  v.  Murtland,  71  111.  250. 

Upon  an  indictment  for  adulteiy^  the  woman's  bad  character  for  chas- 
tity may  be  proved.     Comm.  v.  Gray,  129  Mass.  474. 

In  bastardy  proceedings,  as  the  fact  of  paternity  is  in  question,  the 
woman  may  be  cross-examined  as  to  intercourse  with  other  men  within 
the  period  of  gestation,  but  not  as  to  any  prior  time.  Holcomb  v.  People^ 
79  111.  409  ;  Smith  v,  Varyan,  supra.] 


Chap.  XVI.]     THE  LAW  OR  EVIDENCE.  237 

and  had  denied  upon  cross-examination  the  truth  of  the  matter    ^ 
suggested.' 

Article  136. 

refreshing.  memory. 

A  witness  may,  while  under  examination,  refresh  his  memory 
by  referring  to  any  writing  made  by  himself  at  the  time  of  the 
transaction  concerning  which  he  is  questioned,  or  so  soon  after- 
wards that  the  judge  considers  it  likely  that  the  transaction  was 
at  that  time  fresh  in  his  memory. 

The  witness  may  also  refer  to  any  such  writing  made  by  any 
other  person,  and  read  by  the  witness  within  the  time  aforesaid, 
if  when  he  read  it  he  knew  it  to  be  correct.' 


'  R.  V.  Drummond,  i  Leach, 338  ;  R.  v.  Pike,  3  C.  &  P.  598.  In  these 
cases  dying  declarations  were  excluded,  because  the  persons  by  whom 
they  were  made  would  have  been  incompetent  as  witnesses,  but  the  prin- 
ciple would  obviously  apply  to  all  the  cases  in  question.  [Thus  when 
dying  declarations  are  offered  in  evidence,  it  may  be  shown  that  the  de- 
ceased declarant  was  an  atheist,  to  affect  his  competency  or  credibility 
{.State  V.  Elliott,  45  la.  486  ;  Goodall  v.  State,  1  Or.  333  ;  People  v.  Chin 
Mook  Sow,  51  Cal.  597 ;  see  p.  195,  n.  2,  a7ite),  or  his  contradictory 
statements  may  be  proved.  People  v.  Laurence,  21  Cal.  368  ;  cf.  Cotnm. 
V.   Cooper,  5  Allen,  495. 

As  to  depositions,  see  Art.  131,  ante,  Illustration  (a)  ;  Keran  v.  Trice's 
Excrs,  75  Va.  690  ;  Dabney  v.  Mitchell,  66  Ala.  495  ;  IVallack  v,  Wylie, 
28  Kan.  138  ;    Webster  v.  Mann,  56  Tex.  119.] 

22  Ph.  Ev.  480,  etc.;  T.  E.  ss.  1264-70;  R.  N.  P.  194-5.  [There  are 
three  cases  of  refreshing  memory :  (i)  Where  the  witness,  by  referring 
to  the  writing,  is  enabled  to  actually  recollect  the  facts  and  can  testify  in 
reality  from  memory.  The  writing  may  be  the  original  one  made  by 
himself,  while  the  facts  were  fresh  in  mind  {Chamberliti  v.  Ossipee,  60  N. 
H.  2'i2  ;  Morrison  v.  Chap  in,  97  Mass.  72  ;  Selover  v.  Rexford'  s  Excr,  52 
Pa.  St.  308  ;  Welcome  v.  Batchelder,  23  Me.  85  ;  Russell  v.  Hudson  River 
R.  Co.,  17  N.  Y.  134 ;  Mason  v.  Phelps,  48  Mich.  126  ;  People  v.  Cotta,  49 
Cal.  166),  or  a  copy  thereof  (Hudnutt  v.  Comstock,,  50  Mich.  596  ;  Chicago, 
etc.  R.  Co.  V.  Adler,  56  111.  344  ;  Huffw.  Bennett,  6  N.  Y.  339  ;  Lawson  v. 
Glass,  6  Col.  134  ;  so  as  to  copy  of  copy,  Folsom  v.  Apple  River  Co.,  41 
Wis.  602  ;  or  a  copy  in  a  newspaper,  Comm.  v.  Ford,  130  Mass.  64  ;  Clif- 


238  A  DIGEST  OF  [Part  III. 

An  expert  may  refresh  his  memory  by  reference  to  profes- 
sional treatises.' 

Article  137. 
right  of  adverse  party  as  to  writing  used  to  refresh 

MEMORY. 

Any  writing  referred  to  under  article  136  must  be  produced 


ford  V.  Drake,  14  Bradw.  75),  or  a  writing  made  by  another  person.  Slate 
V.  Miller,  53  la.  209 ;  Hill  v.  State,  17  Wis.  675  ;  Cameron  v.  Blacktnan, 
39  Mich.  108  ;  Marcly  v.  Shidts,  29  N.  Y.  346  ;  Paige  v.  Carter,  64  Cal. 
489.  It  is  not  the  writing,  but  the  recollection  of  the  witness,  that  is  the 
evidence  in  the  case.  Comm.  v.  yeffs,  132  Mass.  5  ;  Bigelow  v.  Hall,  91 
N.  Y.  145 ;  and  cases  supra. 

(2)  Where  the  witness,  after  referring  to  the  writing,  does  not  recol- 
lect the  facts,  and  yet  remembers  that  he  made  or  saw  the  writing  when 
the  facts  were  fresh  in  his  mind,  and  that  it  then  stated  the  facts  correctly. 
The  writing  may  have  been  made  by  himself  {Dugan  v.  Atahoney,  11 
Allen,  573  ;  Howard  v.  McDotumgh,  jj  N.  Y.  592  ;  Adae  v.  Zangs,  41 
la.  536 ;  Downer  v.  Rowell,  24  Vt.  343  ;  Kelsea  v.  Fletcher,  48  N.  H. 
282;  see  Costello  v.  Crowell,  133  Mass.  352),  or  by  another  person. 
Davis  V.  Field,  56  Vt.  426  ;  Chamberlain  v.  Sands,  27  Me.  458  ;  Green 
v.  Caulk,  16  Md.  556  ;  Cojin  v.  Vincent,  12  Cush.  98.  In  some  States 
the  writing  is  itself  evidence  in  special  cases,  but  not  in  other  States. 
See  Art.  137,  note. 

An  analogous  case  is  where  the  facts  are  such  as  naturally  escape  the 
memory,  as  items,  dates,  names,  numerous  details,  etc..  and  a  witness 
is  allowed  to  use  a  memorandum  thereof  as  an  aid  in  testifying,  which  he 
knows  and  testifies  to  have  been  correctly  made.  Howard\.  McDonough, 
77  N.  Y.  592;  King  V.  Fabcr,  51  Pa.  St.  387;  Pinney  v.  Andrus,  41  Vt. 
631  ;  Lawson  v.  Glass,  6  Col.  134. 

(3)  Where  the  witness,  after  referring  to  the  writing,  neither  recollects 
the  facts,  nor  remembers  having  seen  it  before,  and  yet  from  seeing  his 
handwriting  therein  (as  in  signature,  contents,  or  both),  is  enabled  to 
testify  to  its  genuineness  and  correctness.  Gr.  Ev.  i.  $  437  ;  Martin  v. 
Good,  14  Md.  398  ;  Crittenden  v.  Rogers,  8  Gray,  452  ;  Moots  v.  State,  21 
O.  St.  653  ;  cf  Parsons  v.  Mfr's.  Ins.  Co.,  16  Gray,  463;  Cole  v.  Jessup., 
10  N.  Y.  96.     As  to  the  writing  being  evidence,  see  next  article,  note.] 

•  Sussex  Peerage  Case,  11  C.  &  F.  114-17  ;  \_People  v.  Wheeler^  6q 
Cal.  581,  585  ;  see  .'Vrt.  35,  note  2,  ante.\ 


Chap.  XVI.]     THE  LAW  OF  EVIDENCE.  239 

and  shown  to  the  adverse  party  if  he  requires  it ;  and  such 
party  may,  if  he  pleases,  cross-examine  the  witness  thereupon.' 


'  See  Cases  in  R.  N.  P.  195  ;  [Gr.  Ev.  i.  $  437  ;  Peck  v.  Valentine,  94 
N.  Y.  571.  This  is  the  general  rule  both  as  to  Case  (i),  stated  in  the 
preceding  note  (see  Art.  136,  note  2  ;  Comm.  v.  yeffs^  132  Mass.  5  ;  Peck 
V.  Lake,  3  Lans.  136 ;  Chute  v.  State,  19  Minn.  271  ;  Duncan  v.  Seely, 
34  Mich.  369  ;  Stanwood  v.  McLellan,  48  Me.  275  ;  McKivitt  v.  Cotie,  30 
la.  455),  and  also  as  to  Case  (2).  Dugan  v.  Mahoney,  11  Allen,  573  ;  Cos- 
tello  V.  Crowell,  133  Mass.  352  ;  Adae  v.  Zangs,  41  la  536  ;  see  Davis  v. 
Field,  56  Vt.  426.  The  writing  is  not  itself  admitted  in  evidence  (see 
cases  cited).  The  object  of  cross-examination  is  to  ascertain  when  and 
by  whom  the  writing  was  made,  whether  it  is  such  a  writing  as  may 
properly  be  used  for  the  purpose,  whether  the  witness's  memory  is  re- 
freshed by  every  part  of  it,  etc.  Chute  v.  State,  19  Minn.  271  ;  Conun.  v. 
Burke,  114  Mass.  261.  It  is  in  the  discretion  of  the  trial  court  at  what 
stage  of  the  trial  this  e.xamination  shall  be  made  (see  last  case).  So 
when  the  witness,  under  Case  (i),  refers  to  the  writing  out  of  court,  it 
has  been  held  matter  of  judicial  discretion  whether  he  shall  produce  it 
in  court.  Comm.  v.  Lannian,  13  Allen,  563  ;  see  Peck  v.  Lake,  3  Lans. 
136;    Trustees  v.  Bledsoe,  5  Ind.  133. 

A  different  rule  is  applied  in  some  States  in  the  special  case  where  the 
witness  himself  made  the  writing  when  the  facts  were  fresh  in  his  mind, 
but  cannot,  upon  now  referring  to  it,  testify  to  the  facts  from  actual  recol- 
lection ;  the  original  writing  (but  not  a  copy)  is  itself  received  in  evi- 
dence, upon  his  authenticating  its  genuineness  and  correctness.  Mc- 
Cormick  v.  Pa.  Cent.  P.  Co.,  49  N.  Y.  303,  315  ;  Kelsea  v.  Fletcher,  48 
N.  H.  282  ;  Kent  v.  Mason,  i  Bradw.  466 ;  Insurance  Co.  v.  Weide,  9 
Wall.  677  ;  see  Acklen's  Ever.  v.  Hickman,  63  Ala.  494.  But  the  writing 
is  not  evidence,  if  the  witness  has  present  recollection.  Id.;  Flood  v. 
Mitchell,  68  N.  Y.  507. 

In  Case  (3)  the  writing  should  be  produced  in  court  to  examine  the 
witness  upon  (Gr.  Ev.  i.  $  437  ;  Hall  v.  Pay,  18  N.  H.  126  ;  Martin  v. 
Good,  14  Md.  398),  but  is  often  put  in  evidence  itself,  under  other  rules 
of  the  law  of  evidence.  Moots  v.  State,  21  O.  St.  653  ;  Crittenden  v.  Rog- 
ers, 8  Gray,  452. 

A  writing  made  five  months  after  the  transaction  and  by  request  of  a 
party  was  not  allowed  to  be  used  to  refresh  memory  {Spring  Garden  Ins. 
Co.  V.  Evans,  15  Md.  54  ;  cf.  Swartz  v.  Chickering,  58  Md.  290)  ;  so  of 
one  made  twenty  months  afterwards.  Maxwell  \.  Wilkinson,  113  U.  S. 
657.] 


240  A  DIGEST  OF  [Part  III. 


Article  138. 

giving,  as  evidence,  document  called  for  and  pro- 
duced on  notice. 

When  a  party  calls  for  a  document  which  he  has  given  the 
other  party  notice  to  produce,  and  such  document  is  produced 
to,  and  inspected  by,  the  party  calUng  for  its  production,  he  is 
bound  to  give  it  as  evidence  if  the  party  producing  it  requires 
him  to  do  so,  and  if  it  is  or  is  deemed  to  be  relevant.' 

Article    139. 

using,  as  evidence,  a  document,  production  of  which 
was  refused  on  notice. 

When  a  party  refuses  to  produce  a  document  vi^hich  he  has 
had  notice  to  produce,  he  may  not  afterwards  use  the  document 
as  evidence  without  the  consent  of  the  other  party. ^ 


'  VVkaratn  v.  Routledge,  I  Esp.  235  ;  Calvert  v.  Flower,  7  C.  &  P.  386 ; 
(Gr.  Ev.  i.  %  563  ;  Ellison  v.  Crtiser^  40  N.  J.  L.  444  ;  Merrill  v.  Merrill, 
67  Me.  70  ;  Long  v.  Drew,  114  Mass.  T]  ;  cf.  Siitt  v.  Hitidekopers,  17 
Wall.  385  ;  Carr  v.  Gale,  3  W.  &  M.  38  ;  but  in  some  States  this  rule  is 
modified.  Austin  v.  Thompson,  45  N.  H.  113  ;  Rumsey  v.  Lovell,  Anth. 
N.  P.  26.] 

^  Doe  V.  Hodgson,  12  A.  &  E.  135  ;  but  see  remarks  in  2  Ph.  Ev.  270 ; 
IGage  V.  Campbell^  131  Mass.  566  ;  Kingman  v.  Tirrell,  II  Allen,  97  ; 
Tyngs,  U.  S.  Submarine^  etc.  Co.^  i  Hun,  161.] 


Chap.  XV'll.]     THE  LAW  OF  EVIDENCE.  241 


CHAPTER   XVII. 

OF  DEPOSITIONS. 

Article  140. 

depositions  before  magistrates. 

A  DEPOSITION  taken  under  11  &  12  Vict.  c.  42,  s.  17,  may  be 
produced  and  given  in  evidence  at  the  trial  of  the  person 
against  whom  it  was  taken, 

if  it  is  proved  (to  the  satisfaction  of  the  judge)  that  the  wit- 
ness is  dead,  or  so  ill  as  not  to  be  able  to  travel  (although 
there  may  be  a  prospect  of  his  recovery)  ; ' 

(or,  if  he  is  kept  out  of  the  way  by  the  person  accused,)  ' 

or,  (probably,  if  he  is  too  mad  to  testify,)^  and 

if  the  deposition  purports  to  be  signed  by  the  justice  by  or 
before  whom  it  purports  to  have  been  taken  ;  and 

if  it  is  proved  by  the  person  who  offers  it  as  evidence  that  it 
was  taken  in  the  presence  of  the  person  accused,  and  that  he, 
his  counsel,  or  attorney,  had  a  full  opportunity  of  cross-exam- 
ining the  witness  ; 

Unless  it  is  proved  that  the  deposition  was  not  in  fact  signed 
by  the  justice  by  whom  it  purports  to  be  signed, 

(or,  that  the  statement  was  not  taken  upon  oath  ; 

or  (perhaps)  that  it  was  not  read  over  to  or  signed  by  the  wit- 
ness).^ 

«  R.  V.  Stephenson,  L.  &  C.  165. 

*  R.  V.  Scaife,  17  Q.  B.  773. 
^  Analogy  of  R.  v.  Scaife. 

*  I  believe  the  above  to  be  the  effect  of  11  &  12  Vict.  c.  42,  s.  17,  as  in- 
terpreted by  the  cases  referred  to,  the  effect  of  which  is  given  by  the 
words  in  parenthesis,  also  by  common  practice.  Nothing  can  be  more 
rambling  or  ill-arranged  than  the  language  of  the  section  itself.     See  i 


242  A  DIGEST  OF  [Part  III. 

If  there  is  a  prospect  of  the  recovery  of  a  witness  proved  to 
be  too  ill  to  travel,  the  judge  is  not  obliged  to  receive  the  de- 
position, but  may  postpone  the  trial.' 

Article  141. 
depositions  under  30  &  3i  vict.  c.  35,  s.  6. 

A  deposition  taken  for  the  perpetuation  of  testimony  in 
criminal  cases,''  under  30  &  31  Vict.  c.  35,  s.  6,  may  be  pro- 
duced and  read  as  evidence,  either  for  or  against  the  accused, 
upon  the  trial  of  any  offender  or  offence  ^  to  which  it  relates — 

if  the  deponent  is  proved  to  be  dead,  or 

if  it  is  proved  that  there  is  no  reasonable  probability  that  the 
deponent  will  ever  be  able  to  travel  or  to  give  evidence,  and 

if  the  deposition  purports  to  be  signed  by  the  justice  by  or 
before  whom  it  purports  to  be  taken,  and 

if  it  is  proved  to  the  satisfaction  of  the  Court  that  reason- 
able notice  of  the  intention  to  take  such  deposition  was  served 
upon  the  person  (whether  prosecutor  or  accused)  against  whom 
it  is  proposed  to  be  read,  and 

that  such  person  or  his  counsel  or  attorney  had  or  might 
have  had,  if  he  had  chosen  to  be  present,  full  opportunity  of 
cross-examining  the  deponent.* 


Ph.  Ev.  87-100;  T.  E.  s.  448,  etc.  [Statutes  providing  for  the  taking  of 
depositions  are  also  found  in  the  several  States  of  this  country.  There  is 
also  a  law  of  Congress  on  the  subject.  They  resemble  the  English  stat- 
utes in  their  general  features.  See  U.  S.  Rev.  St.  §§  863-875 ;  N.  Y. 
Code  Civ.  Pro.  $^  887-920;  Gr.  Ev.  i.  ^^  320-325  ;  Art.  125,  ante,  and 
notes.] 

'  R.  V.   Tail,  2  F.  &  F.  553. 

"^  [Statutes  providing  for  the  taking  of  depositions  in  criminal  cases  are 
found  in  some  States.  See  N.  Y.  Code  Cr.  Pro.  %  620-657 ;  Maine  Rev. 
St.,  c.  134,  §  19  (ed.  1883)  ;    Bishop  Cr.  Pro.,  i.  §§  1198-1206  (3d  ed.).] 

3  Sic. 

••  30  &  31  Vict.  c.  35,  s.  6.  The  section  is  very  long,  and  as  the  first 
part  of  it  belongs  rather  to  the  subject  of  criminal  procedure  than  to  the 
subject  of  evidence,  I  have  omitted  it.     The  language  is  slightly  altered. 


Chap.  XVI I.]     THE  LAW  OF  EVIDENCE.  243 

Article  142. 

depositions  under  merchant  shipping  act,  1854. 

'  Whenever,  in  the  course  of  any  legal  proceedings  insti- 
tuted in  any  part  of  her  Majesty's  dominions  before  any  judge 
or  magistrate  or  before  any  person  authorized  by  law  or  by 
consent  of  parties  to  receive  evidence,  the  testimony  of  any 
witness  is  required  in  relation  to  the  subject-matter  of  such 
proceeding,  any  deposition  that  such  witness  may  have  pre- 
viously made  on  oath  in  relation  to  the  same  subject-matter 
before  anyjustice  or  magistrate  in  her  Majesty's  dominions,  or 
any  British  consular  officer  elsewhere,  is  admissible  in  evidence, 
subject  to  the  following  restrictions  : 

1.  If  such  proceeding  is  instituted  in  the  United  Kingdom 
or  British  possessions,  due  proof  must  be  given  that  such  wit- 
ness cannot  be  found  in  that  kingdom  or  possession  respect- 
ively. 

2.  If  such  deposition  was  made  in  the  United  Kingdom,  it 
is  not  admissible  in  any  proceeding  instituted  in  the  United 
Kingdom. 

3.  If  the  deposition  was  made  in  any  British  possession,  it  is 
not  admissible  in  any  proceeding  instituted  in  the  same  British 
possession, 

4.  If  the  proceeding  is  criminal,  the  deposition  is  not  ad- 
missible unless  it  was  made  in  the  presence  of  the  person  ac-» 
cused. 


I  have  not  referred  to  depositions  taken  before  a  coroner  (see  7  Geo.  IV. 
c.  64,  s.  4),  because  the  section  says  nothing  about  the  conditions  on 
which  they  may  be  given  in  evidence.  Their  relevancy,  therefore,  de- 
pends on  the  common  law  principles  e.\pressed  in  article  32.  They  must 
be  signed  by  the  coroner  ;  but  these  are  matters  not  of  evidence,  but  of 
criminal  procedure.     [See  McLain  v.  Comm.,  99  Pa.  St.  86.] 

'  17  &  18  Vict.  c.  104,  s.  270.  There  are  some  other  cases  in  which  dep- 
ositions are  admissible  by  statute,  but  they  hardly  belong  to  the  Law  of 
Evidence. 


244  ^  DIGEST  OF  [Part  HI. 

Every  such  deposition  must  be  authenticated  by  the  signa- 
ture of  the  judge,  magistrate,  or  consular  officer  before  whom 
it  was  made.  Such  judge,  magistrate,  or  consular  officer  must, 
when  the  deposition  is  taken  in  a  criminal  matter,  certify  (if 
the  fact  is  so)  that  the  accused  was  present  at  the  taking 
thereof ;  but  it  is  not  necessary  in  any  case  to  prove  the  signa- 
ture or  the  official  character  of  the  person  appearing  to  have 
signed  any  such  deposition. 

In  any  criminal  proceeding  the  certificate  aforesaid  is  (unless 
the  contrary  is  proved)  sufficient  evidence  of  the  accused  hav- 
ing been  present  in  manner  thereby  certified. 

Nothing  in  this  article  contained  affects  any  provision  by 
Parliament  or  by  any  local  legislature  as  to  the  admissibil- 
ity of  depositions  or  the  practice  of  any  court  according  to 
which  depositions  not  so  authenticated  are  admissible  as  evi- 
dence. 


Chap.  XVIII.]     THE  LAW-  01^  EVIDEXCE.  245 


CHAPTER  XVIII. 

OF  IMPROPER  ADMISSION  AND  REJECTION   OF 
EVIDENCE. 

Article  143. 

A  NEW  trial  will  not  be  granted  in  any  civil  action  on  the 
ground  of  the  improper  admission  or  rejection  of  evidence, 
unless  in  the  opinion  of  the  court  to  which  the  application  is 
made  some  substantial  wrong  or  miscarriage  has  been  thereby 
occasioned  in  the  trial  of  the  action.' 

If  in  a  criminal  case  evidence  is  improperly  rejected  or  ad- 
mitted, there  is  no  remedy,  unless  the  prisoner  is  convicted, 
and  unless  the  judge,  in  his  discretion,  states  a  case  for  the 
Court  for  Crown  Cases  Reserved  ;  but  if  that  Court  is  of  opin- 
ion that  any  evidence  was  improperly  admitted  or  rejected,  it 
must  set  aside  the  conviction.'' 


'  Judicature  Act,  1875,  Order  XXXIX,  3.  [S.  P.  Tetmey  v.  Berber,  93 
N.  Y.  524  ;  HornbuckU  v.  Stafford,  ill  U.  S.  389  ;  Whig  v.  Chesterfield, 
116  Mass.  353  ;  Girard  Ins.  Co.  v.  Marr,  46  Pa.  St.  504  ;  Ham  v.  Wiscon- 
sin, etc.  R.  Co.,  61  la.  716.] 

^  [In  this  country,  a  rule  similar  to  that  just  stated  in  respect  to  civil 
rases,  is  generally  held  applicable  to  criminal  cases  ;  but  it  is  said  that 
the  rule  should  be  "  cautiously  applied."  People  v.  Burns,  33  Hun,  299 ; 
>tate  V.  Kingsbury,  58  Me.  238  ;  State  v.  McCaffrey,  63  la.  479  ;  People  v. 
h'eith,  50  Cal.  137  ;  State  v.  Alford,  31  Ct.  40  ;  Bishop,  Cr.  Pro.,  i.  $  1276 
3ded.).] 


246  A  DIGEST  OF  [Notes. 


APPENDIX   OF   NOTES. 


NOTE  I. 
(to  Article  i.) 


The  definitions  are  simply  explanations  of  the  senses  in  which  the 
words  defined  are  used  in  this  work.  They  will  be  found,  however,  if 
read  in  connection  with  my  '  Introduction  to  the  Indian  Evidence  Act,' 
to  explain  the  manner  in  which  it  is  arranged. 

I  use  the  word  "presumption"  in  the  sense  of  a  presumption  of 
law  capable  of  being  rebutted.  A  presumption  of  fact  is  simply  an 
argument.  A  conclusive  presumption  I  describe  as  conclusive  proof. 
Hence  the  few  presumptions  of  law  which  I  have  thought  it  necessary 
to  notice  are  the  only  ones  I  have  to  deal  with. 

In  earlier  editions  of  this  work  I  gave  the  following  definition  of 
relevancy  : 

"Facts,  whether  in  issue  or  not,  are  relevant  to  each  other  when 
one  is,  or  probably  may  be,  or  probably  may  have  been — 

the  cause  of  the  other ; 

the  effect  of  the  other  ; 

an  effect  of  the  same  cause  ; 

a  cause  of  the  same  effect  : 
or  when  the  one  shows  that  the  other  must  or  cannot  have  occurred, 
or  probably  does  or  did  exist,  or  not ; 

or  that  any  fact  does  or  did  exist,  or  not,  which  in  the  common 
course  of  events  would  either  have  caused  or  have  been  caused  by  the 
other  ; 

provided  that  such  facts  do  not  fall  within  the  exclusive  rules  con- 


Notes. J  THE  LAW  OF  EVIDENCE.  247 

tained  in  chapters  iii.,  iv.,  v.,  vi.;  or  that  they  do  fall  within  the  ex- 
ceptions to  those  rules  contained  in  those  chapters."  ' 


'  [In  the  earlier  editions  Mr.  Stephen  also  gave  the  following  excellent 
illustrations  of  relevancy  as  thus  defined  : 

"  (a)  A's  death  is  caused  by  his  taking  poison.  The  administration  of 
the  poison  is  relevant  to  A's  death  as  its  cause.  A's  death  is  relevant  to 
the  poisoning  as  its  effect. 

"(b)  A  and  B  each  eat  from  the  same  dish  and  each  exhibit  symptoms 
of  the  same  poison.  A's  symptoms  and  B's  symptoms  are  relevant  to 
each  other  as  effects  of  the  same  cause. 

"  (f)  The  question  is,  whether  A  died  of  the  effects  of  a  railway  acci- 
dent. 

"  Facts  tending  to  show  that  his  death  was  caused  by  inflammation  of 
the  membranes  of  the  brain,  which  probably  might  be  caused  by  the  ac- 
cident ;  and  facts  tending  to  show  that  his  death  was  caused  by  typhoid 
fever,  which  would  have  nothing  to  do  with  the  accident,  are  relevant  to 
each  other  as  possible  causes  of  the  same  effect — A's  death."  [See  Pitts 
V.  State,  43  Miss.  472  ;  Comin.  v.  Ryan,  134  Mass.  222  ;  Knox  v.  Wheelock, 
54  Vt.  150] 

"  (d)  A  is  charged  with  committing  a  crime  in  London  on  a  given  day. 
The  fact  that  on  that  day  he  was  at  Calcutta  is  relevant,  as  proving  that 
he  could  not  have  committed  the  crime. 

"  (f)  The  question  is,  whether  A  committed  a  crime. 

"  The  circumstances  are  such  that  it  must  have  been  committed  either 
by  A,  B,  or  C.  Every  fact  which  shows  this,  and  every  fact  which  shows 
that  neither  B  or  C  committed  it,  or  that  either  of  them  did  or  might  have 
committed  it,  is  relevant. 

"  (/")  B,  a  person  in  possession  of  a  large  sum  of  money,  is  murdered 
and  robbed.  The  question  is,  whether  A  murdered  him.  The  fact  that 
after  the  murder  A  was  or  was  not  possessed  of  a  sum  of  money  unac- 
counted for  is  relevant,  as  showing  the  existence  or  the  absence  of  a  fact 
which,  in  the  common  course  of  events,  would  be  caused  by  A's  commit- 
ting the  murder.  A's  knowledge  that  B  was  in  possession  of  the  money 
would  be  relevant  as  a  fact,  which,  in  the  ordinary  course  of  events,  might 
cause  or  be  one  of  the  causes  of  the  murder. "  [See  Comrn.  v.  Sturtivant, 
117  Mass.  122  ;  Williams  v.  Comin.,  29  Pa.  St.  102  ;  Kennedy  v.  People,  39 
N.  Y.  245.] 

"  Cf)  A  is  murdered  in  his  own  house  at  night.  The  absence  of  marks 
of  violence  to  the  house  is  relevant  to  the  question,  whether  the  murder 
was  committed  by  a  servant,  because  it  shows  the  absence  of  an  effect 
which  would  have  been  caused  by  its  being  committed  by  a  stranger."] 


248  A  DIGEST  OF  [Notes. 

This  was  taken  (with  some  verbal  alterations)  from  a  pamphlet 
called  '  The  Theory  of  Relevancy  for  the  purpose  of  Judicial  Evi- 
dence, by  George  Clifford  Whitworth,  Bombay  Civil  Service.  Bom- 
bay, 1875.' 

The  7th  section  of  the  Indian  Evidence  Act  is  as  follows  :  "  Facts 
which  are  the  occasion,  cause  or  effect,  immediate  or  otherwise,  of 
relevant  facts  or  facts  in  issue,  or  which  constitute  the  state  of  things 
under  which  they  happened,  or  which  afforded  an  opportunity  for  their 
occurrence  or  transaction,  are  relevant." 

The  nth  section  is  as  follows  : 

"Facts  not  otherwise  relevant  are  relevant ; 

"(i)  If  they  are  inconsistent  with  any  fact  in  issue  or  relevant 
fact; 

"  (2)  If  by  themselves,  or  in  connection  with  other  facts,  they  make 
the  existence  or  non-existence  of  any  fact  in  issue,  or  relevant  fact, 
highly  probable  or  improbable." 

In  my  'Introduction  to  the  Indian  Evidence  Act,'  I  examined  at 
length  the  theory  of  judicial  evidence,  and  tried  to  show  that  the  the- 
ory of  relevancy  is  only  a  particular  case  of  the  process  of  induction, 
and  that  it  depends  on  the  connection  of  events  as  cause  and  effect. 
This  theory  does  not  greatly  differ  from  Bentham's,  though  he  does 
not  seem  to  me  to  have  grasped  it  as  distinctly  as  if  he  had  lived  to 
study  Mill's  Inductive  Logic. 

My  theory  was  expressed  too  widely  in  certain  parts,  and  not  widely 
enough  in  others  ;  and  l\Ir.  Whitworth' s  pamphlet  appeared  to  me  to 
have  corrected  and  completed  it  in  a  judicious  manner.  I  accordingly 
embodied  his  definition  of  relevancy,  with  some  variations  and  addi- 
tions, in  the  text  of  the  first  edition.  The  necessity  of  limiting  in 
some  such  way  the  terms  of  the  nth  section  of  the  Indian  Evidence 
Act  may  be  inferred  from  a  judgment  by  Mr.  Justice  West  (of  the 
High  Court  of  Bombay),  in  the  case  of  R.  v.  Farb/mdas  ami  others, 
printed  in  the  '  Law  Journal,'  May  27,  1876.  I  have  substituted  the 
present  definition  for  it,  not  because  I  think  it  wrong,  but  because  I 
think  it  gives  rather  the  i^rinciple  on  which  the  rule  depends  than  a 
convenient  practical  rule. 

As  to  the  coincidence  of  this  theory  with  English  law,  I  .can  only 
say  that  it  will  be  found  to  supply  a  key  which  will  explain  all  that  is 
said  on  the  subject  of  circumstantial  evidence  by  the  writers  who  have 


Notes.]  THE  LAW  OF  EVIDENCE.  249 

treated  of  that  subject.  Mr.  Whitworth  goes  through  the  evidence 
given  against  the  German,  Miiller,  executed  for  murdering  Mr.  Briggs 
on  the  North  London  Railway,  and  shows  how  each  item  of  it  can  be 
referred  to  one  or  the  other  of  the  heads  of  relevancy  which  he  dis- 
cusses. 

The  theory  of  relevancy  thus  expressed  would,  I  believe,  suffice  to 
solve  every  question  which  can  arise  upon  the  subject  ;  but  the  legal 
rules  based  upon  an  unconscious  apprehension  of  the  theory  exceed  it 
at  some  points  and  fall  short  of  it  at  others. 

NOTE  11. 
(TO  Article  2.) 

See  I  Ph.  Ev.  493,  &c. ;  Best,  ss.  iii  and  251;  T.  E.  chap.  ii. 
pt.  ii. 

For  instances  of  relevant  evidence  held  to  be  insufficient  for  the  pur- 
pose for  which  it  was  tendered,  on  the  ground  of  remoteness,  see  R.  v. 
,  2  C.  &  P.  459  ;  and  Mann  v.  Langton,  3  A.  &  E.  699. 

Mr.  Taylor  (s.  867)  adopts  from  Professor  Greenleaf  the  statement 
that  "  the  law  excludes  on  puljlic  grounds  .  .  .  evidence  which  is 
indecent  or  offensive  to  public  morals,  or  injurious  to  the  feelings  of 
third  persons."  The  authorities  given  for  this  are  actions  on  wagers 
which  the  Court  refused  to  try,  or  in  which  they  arrested  judgment, 
because  the  wagers  were  in  themselves  impertinent  and  offensive,  as, 
for  instance,  a  wager  as  to  the  sex  of  the  Chevalier  D'Eon  {Da  Costa 
V.  Jones,  Cowp.  729).  No  action  now  lies  upon  a  wager,  and  I  fear 
that  there  is  no  authority  for  the  proposition  advanced  by  Professor 
Greenleaf.  I  know  of  no  case  in  which  a  fact  in  issue,  or  relevant  to 
an  issue,  which  the  Court  is  bound  to  try  can  be  excluded  merely  be- 
cause it  would  pain  some  one  who  is  a  stranger  to  the  action.  Indeed, 
in  Da  Costa  v.  Jones,  Lord  Mansfield  said  expressly,  "Indecency  ot 
evidence  is  no  objection  to  its  being  received  where  it  is  necessary  to 
the  decision  of  a  civil  or  criminal  right"  (p.  734V  (See  article  129, 
and  Note  XLVI).       [See  Mclvin  v.  Melvin,  58  N.  H.  569.] 

NOTE  III. 
(to  Article  4.) 
On  this  subject  see  also   I  Ph.    Ev,   157-164;  T.  E.  ss,  527-532; 


250  A  DIGEST  OF  [Notes. 

Best,  s.  508 ;  3  Russ.  on  Crimes,  by  Greaves,  161-7.     (See,  too.  The 
QueerCs  Case,  2  Br.  &  Bing.  309-10.) 

The  principle  is  substantially  the  same  as  that  of  principal  and  ac- 
cessory, or  principal  and  agent.  When  various  persons  conspire  to 
commit  an  offence,  each  makes  the  rest  his  agents  to  carry  the  plan 
into  execution.     (See,  too,  article  17,  Note  XI.) 

NOTE  IV. 
(TO  Article  5.) 

The  principle  is  fully  explained  and  illustrated  in  Malcolmson  v. 
O' Dea,  10  H.  L.  C.  593.  See  particularly  the  reply  to  the  questions 
put  by  the  House  of  Lords  to  the  Judges,  delivered  by  Willes,  J.,  611- 
22.      [See  Boston  v.  Richardson,  105  Mass.  351,  371.] 

See  also  i  Ph.  Ev.  234-9  ;  T.  E.  ss.  593-601  ;  Best,  s.  499. 

Mr.  Phillips  and  Mr.  Taylor  treat  this  principle  as  an  exception  to 
the  rule  excluding  hearsay.  They  regard  the  statements  contained  in 
the  title-deeds  as  written  statements  made  by  persons  not  called  as 
witnesses.  I  think  the  deeds  must  be  regarded  as  constituting  the 
transactions  which  they  effect  ;  and  in  the  case  supposed  in  the  text, 
those  transactions  are  actually  in  issue.  When  it  is  asserted  that  land 
belongs  to  A,  what  is  meant  is,  that  A  is  entitled  to  it  by  a  series  of 
transactions  of  which  his  title-deeds  are  by  law  the  exclusive  evidence 
(see  article  40).  The  existence  of  the  deeds  is  thus  the  very  fact  which 
is  to  be  proved. 

Mr.  Best  treats  the  case  as  one  of  "derivative  evidence,"  an  expres- 
sion which  does  not  appear  to  me  felicitous. 

NOTE  V. 

(TO  Article  8.) 

The  items  of  evidence  included  in  this  article  are  often  referred  to 
by  the  phrase  "res  gestae,"  which  seems  to  have  come  into  use  on  ac- 
count of  its  convenient  obscurity.  The  doctrine  of  "res  gestse"  was 
much  discussed  in  the  case  of  Doe  v.  Tat  ham  (p.  79,  &c.).  In  the 
course  of  the  argument,  Bosanquet,  J.,  observed,  "How  do  you  trans- 
late res  gestae?  gestae,  by  whom?"     Parke,  B.,  afterward  observed, 


Notes.]  THE  LAW  OF  EVIDENCE.  251 


"The  acts  by  whomsoever  done  are  res  gestce,  if  relevant  to  the  mat- 
ter in  issue.  But  the  question  is,  what  are  relevant?"  (7  A.  &  E. 
353.)  In  delivering  his  opinion  to  the  House  of  Lords,  the  same  Judge 
laid  down  the  rule  thus  :  "Where  any  facts  are  proper  evidence  upon 
an  issue"  (/.£'.  when  they  are  in  issue,  or  relevant  to  the  issue)  "all  oral 
or  written  declarations  which  can  explain  such  facts  may  be  received 
in  evidence."  (Same  Case,  4  Bing.  N.  C.  548.)  The  question  asked 
by  Baron  Parke  goes  to  the  root  of  the  whole  subject,  and  I  have  tried 
to  answer  it  at  length  in  the  text,  and  to  give  it  the  prominence  in  the 
statement  of  the  law  which  its  importance  deserves. 

Besides  the  cases  cited  in  the  illustrations,  see  cases  as  to  statements 
accompanying  acts  collected  in  i  Ph.  Ev.  152-7,  and  T.  E.  ss.  521, 
528.  I  have  stated,  in  accordance  with  R.  v.  Walker-,  2  M.  &  R.  212, 
that  the  particulars  of  a  complaint  are  not  admissible  ;  but  I  have  heard 
Willes,  J.,  rule  that  they  were  on  several  occasions,  vouching  Parke, 
B.,  as  his  authority.  R.  v.  Walker  was  decided  by  Parke,  B.,  in  1839. 
Though  he  excluded  the  statement,  he  said,  "The  sense  of  the  thing 
certainly  is,  that  the  jury  sliould  in  the  first  instance  know  the  nature 
of  the  complaint  made  by  the  prosecutrix,  and  all  that  she  then  said. 
But  for  reasons  which  I  never  could  understand,  the  usage  has  obtained 
that  the  prosecutrix's  counsel  should  only  inquire  generally  whether  a 
complaint  was  made  by  the  prosecutrix  of  the  prisoner's  conduct  toward 
her,  leaving  the  prisoner's  counsel  to  bring  before  the  jury  the  particu- 
lars of  that  complaint  by  cross-examination." 

Baron  Bramwell  has  been  in  the  habit,  of  late  years,  of  admitting 
the  complaint  itself.  The  practice  is  certainly  in  accordance  with 
common  sense. 

NOTE  VI. 

(TO  Articles  10,   11,  12.) 

Article  10  is  equivalent  to  the  maxim,  "  Res  inter  alios  acta  alteri 
nocere  non  debet,"  which  is  explained  and  commented  on  in  Best,  ss. 
506-510  (though  I  should  scarcely  adopt  his  explanation  of  it),  and  liy 
Broom  ('Maxims,'  954-968).  The  application  of  the  maxim  to  the 
Law  of  Evidence  is  obscure,  because  it  does  not  show  how  uncon- 
nected transactions  should  be  supposed  to  be  relevant  to  each  other. 
The  meaning  of  the  rule  must  be  inferred  from  the  exceptions  to  it 


252  A  DIGEST  OF  [Notes. 

stated  in  articles  ii  and  12,  which  show  that  it  means,  You  are  not  to 
draw  inferences  from  one  transaction  to  another  which  is  not  specifi- 
cally connected  with  it  merely  because  the  two  resemble  each  other. 
They  must  be  linked  together  by  the  chain  of  cause  and  effect  in  some 
assignable  way  before  you  can  draw  your  inference. 

In  its  literal  sense  the  maxim  also  fails,  because  it  is  not  true  that  a 
man  cannot  be  affected  by  transactions  to  which  he  is  not  a  party.  Il- 
lustrations to  the  contrary  are  obvious  and  innumerable  ;  bankruptcy, 
marriage,  indeed  every  transaction  of  life,  would  supply  them. 

The  exceptions  to  the  rule  given  in  articles  ii  and  12  are  generalized 
from  the  cases  referred  to  in  the  illustrations.  It  is  important  to  ob- 
serve that  though  the  rule  is  expressed  shortly,  and  is  sparingly  illus- 
trated, it  is  of  very  much  greater  importance  and  more  frequent  appli- 
cation than  the  exceptions.  It  is  indeed  one  of  the  most  characteristic 
and  distinctive  parts  of  the  English  Law  of  Evidence,  for  this  is  the 
rule  which  prevents  a  man  charged  with  a  particular  offence  from  hav- 
ing either  to  submit  to  imputations  which  in  many  cases  would  be  fatal 
to  him,  or  else  to  defend  every  action  of  his  whole  life  in  order  to  ex- 
plain his  conduct  on  the  particular  occasion.  A  statement  of  the  Law 
of  Evidence  which  did  not  give  due  prominence  to  the  four  great  ex- 
clusive rules  of  evidence  of  which  this  is  one  would  neither  represent 
the  existing  law  fairly  nor  in  my  judgment  improve  it. 

Th'e  exceptions  to  the  rule  apply  more  frequently  to  criminal  than 
to  civil  proceedings,  and  in  criminal  cases  the  Courts  are  always  dis- 
inclined to  run  the  risk  of  prejudicing  the  prisoner  by  permitting  mat- 
ters to  be  proved  which  tend  to  show  in  general  that  he  is  a  bad  man, 
and  so  likely  to  commit  a  crime.  In  each  of  the  cases  by  which  ar- 
ticle 12  is  illustrated,  the  evidence  admitted  went  to  prove  the  true 
character  of  facts  which,  standing  alone,  might  naturally  have  been 
accounted  for  on  the  supposition  of  accident — a  supposition  which  was 
rebutted  by  the  repetition  of  similar  occurrences.  In  the  case  of  R.  v. 
Cray  (Illustration  («)),  there  were  many  other  circumstances  which 
would  have  been  sufficient  to  prove  the  prisoner's  guilt,  apart  from  the 
previous  fires.  That  part  of  the  evidence,  indeed,  seemed  to  have 
little  influence  on  the  jury.  Garner' s  Case  (Illustration  (c),  note)  was 
an  extraordinary  one,  and  its  result  was  in  every  way  unsatisfactory. 
Some  account  of  this  case  will  be  found  in  the  evidence  given  by  me 
before  the  Commission  on  Capital  Punishments  which  sat  in  i866. 


Notes.]  THE  LAW  OF  EVIDENCE. 


NOTE  VII. 

(TO  Article  13.) 

As  to  presumptions  arising  from  the  course  of  office  or  business,  see 
Best,  s.  403  ;  i  Ph.  Ev.  480-4  ;  T.  E.  s.  147.  The  presumption, 
"Omnia  esse  rite  acta,"  also  appHes.  See  Broom's  'Maxims,'  942  ; 
Best,  ss.  353-365  ;  T.  E.  s.  124,  &c. ;  I  Ph.  Ev.  480 ;  and  Star.  757, 
763- 

NOTE   VIII. 

(to  Article  14.) 

The  unsatisfactory  character  of  the  definitions  usually  given  of  hear- 
say is  well  known.  See  Best,  s.  495  ;  T.  E.  ss.  507-510.  The  defi- 
nition given  by  Mr.  Phillips  sufficiently  exemplifies  it :  "  When  a  wit- 
ness, in  the  course  of  stating  what  has  come  under  the  cognizance  of 
his  own  senses  concerning  a  matter  in  dispute,  states  the  language  of 
others  which  he  has  heard,  or  produces  papers  which  he  identifies  as 
being  written  by  particular  individuals,  he  offers  what  is  called  hear- 
say evidence.  This  matter  may  sometimes  be  the  very  matter  in  dis- 
pute," etc.  (i  Ph.  Ev.  143).  If  this  definition  is  correct,  the  maxim, 
"  Hearsay  is  no  evidence,"  can  only  be  saved  from  the  charge  of  false- 
hood by  exceptions  which  make  nonsense  of  it.  By  attaching  to  it  the 
meaning  given  in  the  text,  it  becomes  both  intelligible  and  true. 
There  is  no  real  difference  between  the  fact  that  a  man  was  heard  to 
say  this  or  that,  and  any  other  fact.  Words  spoken  may  convey  a 
threat,  supply  the  motive  for  a  crime,  constitute  a  contract,  amount  to 
slander,  etc.,  etc.  ;  and  if  relevant  or  in  issue,  on  these  or  other 
grounds,  they  must  be  proved,  like  other  facts,  by  the  oath  of  some 
one  who  heard  them.  The  important  point  to  remember  about  them 
is  that  bare  assertion  must  not,  generally  speaking,  be  regarded  as  rele- 
vant to  the  truth  of  the  matter  asserted. 

The  doctrine  of  hearsay  evidence  was  fully  discussed  by  many  of 
the  judges  in  the  case  of  Doe  d.  IVright  v.  Tatham  on  the  different 
occasions  when  that  case  came  before  the  Court  (see  7  A.  &  E.  313- 
408  ;  4  Bing.  N.  C.  489-573).  The  question  was  whether  letters  ad- 
dressed to  a  deceased  testator,  implying  that  the  writers  thought  him 


254  A  DIGEST  OF  [Notes. 

sane,  but  not  acted  upon  by  him,  could  be  regarded  as  relevant 
to  his  sanity,  which  was  the  point  in  issue.  The  case  sets  the  strin- 
gency of  the  rule  against  hearsay  in  a  light  which  is  forcibly  illustrated 
by  a  passage  in  the  judgment  of  Baron  Parke  (7  A.  &  E.  385-8),  to 
the  following  effect: — He  treats  the  letters  as  "statements  of  the 
writers,  not  on  oath,  of  the  truth  of  the  matter  in  question,  with  this 
addition,  that  they  have  acted  upon  the  statements  on  the  faith  of 
their  being  true  by  their  sending  the  letters  to  the  testator."  He  then 
goes  through  a  variety  of  illustrations  which  had  been  suggested  in  ar- 
gument, and  shows  that  in  no  case  ought  such  statements  to  be  re- 
garded as  relevant  to  the  truth  of  the  matter  stated,  even  when  the 
circumstances  were  such  as  to  give  the  strongest  possible  guarantee 
that  such  statements  expressed  the  honest  opinions  of  the  persons  who 
made  them.  Amongst  others  he  mentions  the  following: — "The 
conduct  of  the  family  or  relations  of  a  testator  taking  the  same  pre- 
cautions in  his  absence  as  if  he  were  a  lunatic, — his  election  in  his  ab- 
sence to  some  high  and  responsible  office  ;  the  conduct  of  a  physician 
who  permitted  a  will  to  be  executed  by  a  sick  testator  ;  the  conduct  of 
a  deceased  captain  on  a  question  of  seaworthiness,  who,  after  examin- 
ing eveiy  part  of  a  vessel,  embarked  in  it  with  his  family  ;  all  these, 
when  deliberately  considered,  are,  with  reference  to  the  matter  in 
issue  in  each  case,  mere  instances  of  hearsay  evidence — mere  state- 
ments, not  on  oath,  but  implied  in  or  vouched  by  the  actual  conduct 
of  persons  by  whose  acts  the  litigant  parties  are  not  to  be  bound." 
All  these  matters  are  therefore  to  be  treated  as  irrelevant  to  the  ques- 
tions at  issue. 

These  observations  make  the  rule  quite  distinct,  but  the  reason  sug- 
gested for  it  in  the  concluding  words  of  the  passage  extracted  appears 
to  be  weak.  That  passage  implies  that  hearsay  is  excluded  because 
no  one  "ought  to  be  bound  by  the  act  of  a  stranger."  That  no  one 
shall  have  power  to  make  a  contract  for  another  or  commit  a  crime  for 
which  that  other  is  to  be  responsible  without  his  authority  is  obviously 
reasonable,  but  it  is  not  so  plain  why  A's  conduct  should  not  furnish 
good  grounds  for  inference  as  to  B's  conduct,  though  it  was  not  au- 
thorized by  B.  The  importance  of  shortening  proceedings,  the  im- 
portance of  compelling  people  to  procure  the  best  evidence  they  can, 
and  the  importance  of  excluding  opportimities  of  fraud,  are  consider- 
ations which  probably  justify  the  rule  excluding  hearsay  ;  but  Baron 


Notes.]  THE  LAW  OF  EVIDENCE.  255 


Parke's  illustrations  of  its  operation  clearly  prove  that  in  some  cases  it 
excludes  the  proof  of  matter  which,  but  for  it,  would  be  regarded  not 
only  as  relevant  to  particular  facts,  but  as  good  grounds  fur  believing 
in  their  existence. 

NOTE  IX. 

(TO  Article  15.) 

This  definition  is  intended  to  exclude  admissions  by  pleading,  ad- 
missions which,  if  so  pleaded,  amount  to  estoppels,  and  admissions 
made  for  the  purposes  of  a  cause  by  the  parties  or  their  solicitors. 
These  subjects  are  usually  treated  of  by  writers  on  evidence  ;  but  they 
appear  to  me  to  belong  to  other  departments  of  the  law.  The  sub- 
ject, including  the  matter  which  I  omit,  is  treated  at  length  in  I  Ph. 
Ev.  308-401,  and  T.  E.  ss.  653-788.  A  vast  variety  of  cases  upon 
admissions  of  every  sort  may  be  found  by  referring  to  Roscoe,  N.  P. 
(Index,  under  the  word  Admissions.)  It  may  perhaps  be  well  to  ob- 
serve that  when  an  admission  is  contained  in  a  document,  or  series  of 
documents,  or  when  it  forms  part  of  a  discourse  or  conversation,  so 
much  and  no  more  of  the  document,  series  of  documents,  discourse  or 
conversation,  must  be  proved  as  is  necessary  for  the  full  understand- 
ing of  the  admission,  but  the  judge  or  jury  may  of  course  attach  de- 
grees of  credit  to  different  parts  of  the  matter  proved.  This  rule  is 
elaborately  discussed  and  illustrated  by  Mr.  Taylor,  ss.  655-665.  It 
has  lost  much  of  the  importance  which  attached  to  it  when  parties  to 
actions  could  not  be  witnesses,  but  could  be  compelled  to  make  ad- 
missions by  bills  of  discovery.  The  ingenuity  of  equity  draughtsmen 
was  under  that  system  greatly  exercised  in  drawing  answers  in  such  a 
form  that  it  was  impossible  to  read  part  of  them  without  reading  the 
whole,  and  the  ingenuity  of  the  Court  was  at  least  as  much  exercised 
in  countermining  their  ingenious  devices.  The  power  of  administering 
interrogatories,  and  of  examining  the  parties  directly,  has  made  great 
changes  in  these  matters. 

NOTE   X. 

(TO  Article  16.) 
As  to  admissions  by  parties,  see  Moriarty  v,  Z.  C.  &"  D.  Railway,  L. 


256  A  DIGEST  OF  [Notes. 

R.  5  Q.  B.  320,  per  Blackburn,  J.  ;  A  Iner  v.  George,  i  Camp.  392  ; 
Batierf?ian  v.  Radenitts,  7  T.  R.  663. 

As  to  admissions  by  parties  interested,  see  Spargo  v.  Brown,  9  B.  & 
C.  938. 

See  also  on  the  subject  of  this  article  i  Ph.  Ev.  362-3,  369,  398  ; 
and  T.  E.  ss.  669-671,  685,  687,  719;  Roscoe,  N.  P.  71. 

As  to  admissions  by  privies,  see  i  Ph.  Ev.  394-7,  and  T.  E.  (from 
Greenleaf),  s.  712. 

NOTE   XI. 
(TO  Article  17.) 

The  subject  of  the  relevancy  of  admissions  by  agents  is  rendered 
difficult  by  the  vast  variety  of  forms  which  agency  assumes,  and  by 
the  distinction  between  an  agent  for  the  purpose  of  making  a  state- 
ment and  an  agent  for  the  purpose  of  transacting  business.  If  A  sends 
a  message  by  B,  B's  words  in  delivering  it  arc  in  effect  A's  ;  but  B's 
statements  in  relation  to  the  subject-matter  of  the  message  have,  as 
such,  no  special  value.  A's  own  statements  are  valuable  if  they  sug- 
gest an  inference  which  he  afterwards  contests  because  they  are  against 
his  interest  ;  but  when  the  agent's  duty  is  done,  he  has  no  special  in- 
terest in  the  matter. 

The  principle  as  to  admissions  by  agents  is  stated  and  explained  by 
Sir  W.  Grant  in  Fairlie  v.  Hastings,  10  Ve.  126-7. 

NOTE   XII. 

(to  Article  18.) 

See  for  a  third  exception  (which  could  hardly  occur  now),  Clay  v. 
La7igslow,  M.  &  M.  45. 

NOTE    XIII. 

(to  Article  19.) 

This  comes  very  near  to  the  case  of  arbitration.  See,  as  to  irregu- 
lar arbitrations  of  this  kind,  i  Ph.  Ev.  383  ;  T.  E.  ss.  689-90. 


Notes.]  THE  LAW  OF  EVIDENCE.  257 


NOTE   XIV. 

(to  Article  20.) 

See  more  on  this  subject  in  i  Ph.  Ev,  326-8  ;  T.  E.  ss.  702,  720-3  ; 
R.  N.  P.  66. 

NOTE   XV. 

(TO  Article  22.) 

On  the  law  as  to  Confessions,  see  i  Ph.  Ev.  401-423  ;  T.  E.  ss.  796- 
807,  and  s.  824  ;  Best,  ss.  551-574  ;  Roscoe,  Cr.  Ev.  38-56  ;  3  Russ. 
on  Crimes,  by  Greaves,  365-436.  Joy  on  Confessions  reduces  the 
law  on  the  subject  to  the  shape  of  13  propositions,  the  effect  of  all  of 
which  is  given  in  the  te.xt  in  a  different  form. 

Many  cases  have  been  decided  as  to  the  language  which  amounts  to 
an  inducement  to  confess  (see  Roscoe,  Cr.  Ev.  40-3,  where  most  of 
them  are  collected).  They  are,  however,  for  practical  purposes, 
summed  up  in  R.  v.  Baldry,  2  Den.  C.  C.  430,  which  is  the  authority 
for  the  last  lines  of  the  first  paragraph  of  this  article. 

NOTE    XVI. 
(TO  Article  23.) 

Cases  are  sometimes  cited  to  show  that  if  a  person  is  examined  as  a 
witness  on  oath,  his  deposition  cannot  be  used  in  evidence  against 
him  afterwards  (see  T.  E.  ss.  809  and  818,  n.  6  j  also  3  Russ.  on  Cri., 
by  Greaves,  407,  etc.).  All  these  cases,  however,  relate  to  the  exami- 
nations before  magistrates  of  persons  accused  of  crimes,  under  the 
statutes  which  were  in  force  before  11  &  12  Vict.  c.  42. 

These  statutes  authorized  the  examination  of  prisoners,  but  not  their 
examination  upon  oath.  The  il  &  12  Vict.  c.  42,  prescribes  the  form 
of  the  only  question  which  the  magistrate  can  put  to  a  prisoner  ;  and 
since  that  enactment  it  is  scarcely  possible  to  suppose  that  any  magis- 
trate would  put  a  prisoner  upon  his  oath.  The  cases  may  therefore 
be  regarded  as  obsolete. 

NOTE   XVII. 
(to  Article  26.) 
As  to  dying  declarations,  see  I  Ph.  Ev.  239-252  j  T.  E.  ss.  644-652 ; 


258  A  DIGEST  OF  [Notes. 


Best,  s.  505  ;  Starkie,  32  &  38  j  3  Russ.  Cri.  250-272  (perhaps  the 
fullest  collection  of  the  cases  on  the  subject)  ;  Roscoe,  Crim.  Ev.  31-2. 
R.  V.  Baker,  2  Mo.  &  Ro.  53,  is  a  curious  case  on  this  subject.  A 
and  B  were  both  poisoned  by  eating  the  same  cake.  C  was  tried  for 
poisoning  A.  B's  dying  declaration  that  she  made  the  cake  in  C's 
presence,  and  put  nothing  bad  in  it,  was  admitted  as  against  C,  on  the 
ground  that  the  whole  formed  one  transaction.  [See  Brown  v. 
Cofntii.,  73  Pa.  St.  321  ;  State  v.  West/all,  49  la.  328  ;  State  v.  Bohajt, 
15  Kan.  407.] 

NOTE    XVIII. 

(to  Article  27.) 

I  Ph.  Ev.  280-300  ;  T.  E.  ss.  630-643  ;  Best,  501  ;  R.  N.  P.  63  ; 
and  see  note  to  Price  v.  Lord  Torrington,  2  S.  L.  C.  328.  The  last 
case  on  the  subject  is  Massey  v.  Allen,  L.  R.  13  Ch.  Div.  558. 

NOTE   XIX. 
(to  Article  28.) 

The  best  statement  of  the  law  upon  this  subject  will  be  found  in 
Higham  v.  Ridgway,  and  the  note  thereto,  2  S.  L.  C.  318.  See  also 
I  Ph.  Ev.  252-280 ;  T.  E.  ss.  602-629  ;  Best,  s.  500  :  R.  N.  P.  584. 

A  class  of  cases  exists  which  I  have  not  put  into  the  form  of  an  ar- 
ticle, partly  because  their  occurrence  since  the  commutation  of  tithes 
must  be  very  rare,  and  partly  because  I  find  a  great  difficulty  in  under- 
standing the  place  which  the  rule  established  by  them  ought  to  occupy 
in  a  systematic  statement  of  the  law.  They  are  cases  which  lay  down 
the  rule  that  statements  as  to  the  receipts  of  tithes  and  moduses  made 
by  deceased  rectors  and  other  ecclesiastical  corporations  sole  are  ad- 
missible in  favor  of  their  successors.  There  is  no  doubt  as  to  the  rule 
(see,  in  particular.  Short  v.  Lee,  2  Jac.  &  Wal.  464  ;  and  Young  v. 
Clare  Hall,  17  Q.  B.  537).  The  difficulty  is  to  see  why  it  was  ever 
regarded  as  an  exception.  It  falls  directly  within  the  principle  stated 
in  the  text,  and  would  appear  to  be  an  obvious  illustration  of  it ;  but 
in  many  cases  it  has  been  declared  to  be  anomalous,  inasmuch  as  it 
enables  a  predecessor  in  title  to  make  evidence  in  favor  of  his  succes- 
sor.    This  suggests  that  article  28  ought  to  be  limited  by  a  proviso 


Notes.]  THE  LAW  OF  EVIDENCE.  259 


that  a  declaration  against  interest  is  not  relevant  if  it  was  made  by  a 
predecessor  in  title  of  the  person  who  seeks  to  prove  it,  unless  it  is  a 
declaration  by  an  ecclesiastical  corporation  sole,  or  a  member  of  an 
ecclesiastical  corporation  aggregate  (see  Shore  v.  Zee),  as  to  the  re- 
ceipt of  a  tithe  or  modus. 

Some  countenance  for  such  a  proviso  may  be  found  in  tlie  terms  in 
which  Bayley,  J.,  states  the  rule  in  Gleadowv.  Atkin,  and  in  the  cir- 
cumstance that  when  it  first  obtained  currency  the  parties  to  an  action 
were  not  competent  witnesses.  But  the  rule  as  to  the  endorsement  of 
notes,  bonds,  etc.,  is  distinctly  opposed  to  such  a  view. 

NOTE  XX. 
(to  Article  30.) 

Upon  this  subject,  besides  the  authorities  in  the  text,  see  I  Ph.  Ev. 
169-197  ;  T.  E.  ss.  543-569  ;  Best,  s.  497  ;  R.  N.  P.  50-54  (the  latest 
collection  of  cases). 

A  great  number  of  cases  have  been  decided  as  to  tlie  particular  docu- 
ments, etc.,  which  fall  within  the  rule  given  in  the  text.  They  are 
collected  in  the  works  referred  to  above,  but  they  appear  to  me  merely 
to  illustrate  one  or  other  of  the  branches  of  the  rule,  and  not  to  ex- 
tend or  vary  it.  An  award,  e.g.,  is  not  within  the  last  branch  of  Illus- 
tration (/'),  because  it  "is  but  the  opinion  of  the  arbitrator,  not  upon 
his  own  knowledge"  {Evans  v.  Rees,  lo  A.  &  E.  155)  ;  but  the  de- 
tailed application  of  such  a  rule  as  this  is  better  learnt  by  experience, 
applied  to  a  firm  grasp  of  principle,  than  by  an  attempt  to  recollect  in- 
numerable cases. 

The  case  of  Weeks  v.  Sparke  is  remarkable  for  the  light  it  throws 
on  the  history  of  the  Law  of  Evidence.  It  was  decided  in  1813,  and 
contains  inter  alia  the  following  curious  remarks  by  Lord  Ellen- 
borough.  "  It  is  stated  to  be  the  habit  and  practice  of  different  cir- 
cuits to  admit  this  species  of  evidence  upon  such  a  question  at  the 
present.  That  certainly  cannot  make  the  law,  but  it  shows  at  least, 
from  the  established  practice  of  a  large  branch  of  the  profession,  and 
of  the  judges  who  have  presided  at  various  times  on  those  circuits, 
what  has  been  the  prevailing  opinion  upon  this  subject  amongst  so 
large  a  class  of  persons  interested  in  the  due  administration  of  the  law. 
It  is  stated  to  have  been  the  practice  both  of  the  Northern  and  West- 


26o  .  A  DIGEST  OF  [Notes. 

ern  Circuits.  My  learned  predecessor,  Lord  Kenyon,  certainly  held  a 
different  opinion,  the  practice  of  the  Oxford  Circuit,  of  which  he  was 
a  member,  being  different."  So  in  the  Berkeley  Peerage  Case,  Lord 
Eldon  said,  "when  it  was  proposed  to  read  this  deposition  as  a  dec- 
laration, the  Attorney-General  (Sir  Vicary  Gibbs)  flatly  objected  to  it. 
He  spoke  quite  right  as  a  Western  Circttiteer,  of  what  he  had  often 
heard  laid  down  in  the  West,  and  never  heard  doubted"  (4  Camp.  419, 
A.D.  181 1).  This  shows  how  very  modern  much  of  the  Law  of  Evi- 
dence is.  Le  Blanc,  J.,  in  Weeks  v.  Sparke,  says,  that  a  foundation 
must  be  laid  for  evidence  of  this  sort  "by  acts  of  enjoyment  within 
living  memory."  This  seems  superfluous,  as  no  jury  would  ever  find 
that  a  public  right  of  way  existed,  which  had  not  been  used  in  living 
memory,  on  the  strength  of  a  report  that  some  deceased  person  had 
said  that  there  once  was  such  a  right. 

NOTE    XXL 

(to  Article  31.) 

See  I  Ph.  Ev.  197-233  ;  T.  E,  ss.  571-592  ;  Best,  633  ;  R.  N.  P. 
49-50. 

The  Berkeley  Peerage  Case  (Answer  of  the  Judges  to  tlie  House  of 
Lords),  4  Camp.  401,  which  established  the  third  condition  given  in 
the  text  J  and  Davies  v.  Lowndes,  6  M.  &  G.  471  (see  more  particu- 
larly pp.  525-9,  in  which  the  question  of  family  pedigrees  is  fully  dis- 
cussed) are  specially  important  on  this  subject. 

As  to  declarations  as  to  the  place  of  births,  etc.,  see  Shields  v. 
Boucher,  i  De  G,  &  S.  49-58. 

NOTE  XXIL 
(TO  Article  32.) 

See  also  I  Ph.  Ev.  306-8 ;  T.  E.  ss.  434-447  ;  Buller,  N.  P.  238, 
and  following. 

In  reference  to  this  subject  it  has  been  asked  whether  this  principle 
applies  indiscriminately  to  all  kinds  of  evidence  in  all  cases.  Sup- 
pose a  man  were  to  be  tried  twice  upon  the  same  facts — e.g.,  for  rob- 
bery after  an  acquittal  for  murder,  and  suppose  that  in  the  interval  be- 
tween the  two   trials  an  important  witness  who  had  not  been  called 


N OTES.]  THE  LAW  OF  E VIDENCE.  26 1 


before  the  magistrates  were  to  die,  might  his  evidence  be  read  on  the 
second  trial  from  a  reporter's  sliort-hand  notes?  This  case  might 
easily  have  occurred  if  Orton  had  been  put  on  his  trial  for  forgery  as 
well  as  for  perjury.  I  should  be  disposed  to  think  on  principle  that 
such  evidence  would  be  admissible,  though  I  cannot  cite  any  authority 
on  the  subject.  The  common  law  principle  on  which  depositions 
taken  before  magistrates  and  in  Chancery  proceedings  were  admitted 
seems  to  cover  the  case. 

NOTE   XXIII. 
(TO  Articles  39-47.) 

The  law  relating  to  the  relevancy  of  judginents  of  Courts  of  Justice 
to  the  existence  of  the  matters  which  they  assert  is  made  to  appear  ex- 
tremely complicated  by  the  manner  in  which  it  is  usually  dealt  with. 
The  method  commonly  employed  is  to  mix  up  the  question  of  the  effect 
of  judgments  of  various  kinds  with  that  of  their  admissibility,  subjects 
which  appear  to  belong  to  different  branches  of  the  law. 

Thus  the  subject,  as  commonly  treated,  introduces  into  the  Law  of 
Evidence  an  attempt  to  distinguish  between  judgments  in  rem,  and 
judgments  in  personam  or  inter  partes  (terms  adapted  from,  but  not 
belonging  to,  Roman  law,  and  never  clearly  defined  in  reference  to  our 
own  or  any  other  system);  also  the  question  of  the  effect  of  the  pleas 
of  autrefois  acquit,  and  autrefois  convict,  which  clearly  belong  not  to 
evidence,  but  to  criminal  procedure  ;  the  question  of  estoppels,  which 
belongs  rather  to  the  law  of  pleading  than  to  that  of  evidence ;  and 
the  question  of  the  effect  given  to  the  judgments  of  foreign  Courts  of 
Justice,  which  would  seem  more  properly  to  belong  to  private  inter- 
national law.  These  and  other  matters  are  treated  of  at  great  length 
in  2  Ph.  Ev.  1-78,  and  T.  E.  ss.  14S0-1534,  and  in  the  note  to  the 
Duchess  of  JCingston^ s  Case  in  2  S.  L.  C.  777-880.  Best  (ss.  588- 
595)  treats  the  matter  more  concisely. 

The  text  is  confined  to  as  complete  a  statement  as  I  could  make  of 
the  principles  which  regulate  the  relevancy  of  judgments  considered  as 
declarations  proving  the  facts  which  they  assert,  whatever  may  be  the 
effect  or  the  use  to  be  made  of  those  facts  when  proved.  Thus  the 
leading  principle  stated  in  article  40  is  equally  true  of  all  judgments 
alike.     Every  judgment,  whether  it  be  in  rem  or  inter  partes,  must 


262  A  DIGEST  OF  [Notes. 

and  does  prove  what  it  actually  effects,  though  the  effects  of  different 
sorts  of  judgments  differ  as  widely  as  the  effects  of  different  sorts  of 
deeds. 

There  has  been  much  controversy  as  to  the  extent  to  which  effect 
ought  to  be  given  to  the  judgments  of  foreign  Courts  in  this  country, 
and  as  to  the  cases  in  which  the  Courts  will  refuse  to  act  upon  them  ; 
but  as  a  mere  question  of  evidence,  they  do  not  differ  from  English 
judgments.  The  cases  on  foreign  judgments  are  collected  in  the  note 
to  the  Duchess  of  JCingston' s  Case,  2  S.  L.  C.  813-845.  There  is  a  con- 
venient list  of  the  cases  in  R.  N.  P.  201-3.  The  cases  of  Godard  \. 
Gray,  L.  R.  6  Q.  B.  139,  Castrique  v.  I/m-ie,  L.  R.  4  E.  &  I.  A.  414, 
[and  Abouloffv.  Oppenkeimer,  10  Q.  B.  D.  295],  are  the  latest  lead- 
ing cases  on  the  subject. 

NOTE  XXIV. 

(to  Chapter  V.) 

On  evidence  of  opinions,  see  i  Ph.  Ev.  520-8  ;  T.  E.  ss.  1273-81  ; 
Best,  ss.  511-17;  R.  N.  P.  193-4.  The  leading  case  on  the  subject 
is  Doe  v.  Tatham,  7  A.  &  E.  313  ;  and  4  Bing.  N.  C.  489,  referred  to 
above  in  Note  VIII.  Baron  Parke,  in  the  extracts  there  given,  treats 
an  expression  of  opinion  as  hearsay,  that  is,  as  a  statement  affirming 
the  truth  of  the  subject-matter  of  the  opinion. 

NOTE  XXV. 

(TO  Chapter  VI.) 

See  I  Ph.  Ev.  502-8 ;  T.  E.  ss.  325-336 ;  Best,  ss.  257-263  ;  3 
Russ.  Cr.  299-304.  The  subject  is  considered  at  length  in  R.  v.  Ro'co- 
toii,  I  L.  &  C.  520.  One  consequence  of  the  view  of  the  subject  taken 
in  that  case  is  that  a  witness  may  with  perfect  truth  swear  that  a  man, 
who  to  his  knowledge  has  been  a  receiver  of  stolen  goods  for  years, 
has  an  excellent  character  for  honesty,  if  he  has  had  the  good  luck  to 
conceal  his  crimes  from  his  neighbors.  It  is  the  essence  of  successful 
hypocrisy  to  combine  a  good  reputation  with  a  bad  disposition,  and 
according  to  R,  v.  Roivton,  the  reputation  is  the  important  matter. 
The  case  is  seldom  if  ever  acted  on  in  practice.     The  question  always 


Notes.]  THE  LAW  OF  EVIDEACE.  263 

put  to  a  witness  to  character  is,  What  is  the  prisoner's  character  for 
honesty,  morality,  or  humanity  ?  as  the  case  may  be  ;  nor  is  the  wit- 
ness ever  warned  that  he  is  to  confine  his  evidence  to  the  prisoner's 
reputation.  It  would  be  no  easy  matter  to  make  the  common  run  of 
witnesses  understand  the  distinction. 

NOTE  XXVI. 

(to  Article  58.) 

The  list  of  matters  judicially  noticed  in  this  article  is  not  intended 
to  ]je  quite  complete.  It  is  compiled  from  i  Ph.  Ev.  458-67,  and  T. 
E.  ss.  4-20,  where  the  subject  is  gone  into  more  minutely.  A  con- 
venient list  is  also  given  in  R.  N.  P.  ss.  88-92,  which  is  much  to  the 
same  effect.  It  may  be  doubted  whether  an  absolutely  complete  list 
could  be  formed,  as  it  is  practically  impossilile  to  enumerate  every- 
thing which  is  so  notorious  in  itself,  or  so  distinctly  recorded  by  pub- 
lic authority,  that  it  would  be  superfluous  to  prove  it.  Paragraph  (i) 
is  drawn  with  reference  to  the  fusion  of  Law,  Equity,  Admiralty,  and 
Testamentary  Jurisdiction  effected  by  the  Judicature  Act. 

NOTE  XXVII. 

(TO  Article  62.) 

Owing  to  the  ambiguity  of  the  word  "evidence,"  which  is  some- 
times used  to  signify  the  effect  of  a  fact  when  proved,  and  sometimes 
to  signify  the  testimony  by  which  a  fact  is  proved,  the  expression 
"hearsay  is  no  evidence"  has  many  meanings.  Its  common  and  most 
important  meaning  is  the  one  given  in  article  14,  which  might  be  oth- 
erwise expressed  by  saying  that  the  connection  between  events,  and 
reports  that  they  have  happened,  is  generally  so  remote  that  it  is  ex- 
pedient to  regard  the  existence  of  the  reports  as  irrelevant  to  the  oc- 
currence of  the  events,  except  in  excepted  cases.  Article  62  expresses 
the  same  thing  from  a  different  point  of  view,  and  is  subject  to  no  ex- 
ceptions whatever.  It  asserts  that  whatever  may  be  the  relation  of  a 
fact  to  be  proved  to  the  fact  in  issue,  it  must,  if  proved  by  oral  evi- 
dence, be  proved  by  direct  evidence.  For  instance,  if  it  were  to  be 
proved  under  article  ;ji  that  A,  who  died  fifty  years  ago,  said  that  he 


264  A  DIGEST  OF  [Notes. 

had  heard  from  his  father  B,  who  died  100  years  ago,  that  A's  grand- 
father C  had  told  B  that  D,  C's  elder  brother,  died  without  issue,  A's 
statement  must  be  proved  by  some  one  who,  with  his  own  ears,  heard 
him  make  it.  If  (as  in  the  case  of  verbal  slander)  the  speaking  of  the 
words  was  the  very  point  in  issue,  they  must  be  proved  in  precisely  the 
same  way.  Cases  in  which  evidence  is  given  of  character  and  general 
opinion  may  perhaps  seem  to  be  exceptions  to  this  rule,  but  they  are 
not  so.  When  a  man  swears  that  another  has  a  good  charactei",  he 
means  that  he  has  heard  many  people,  though  he  does  not  particularly 
recollect  what  people,  speak  well  of  him,  though  he  does  not  recollect 
all  that  they  said. 

NOTE   XXVIII. 
(to  Articles  66  &  67.) 

This  is  probably  the  most  ancient,  and  is,  as  far  as  it  extends,  the 
most  inflexible  of  all  the  rules  of  evidence.  The  following  character- 
istic observations  by  Lord  Ellenborough  occur  in  R.  v.  I/ai-ringivori/i, 
4  M.  &  S.  353  : 

"The  rule,  therefore,  is  universal  that  you  must  first  call  the  sub- 
scribing witness  ;  and  it  is  not  to  be  varied  in  each  particular  case  by 
trying  whether,  in  its  application,  it  may  not  be  productive  of  some 
inconvenience,  for  then  there  would  be  no  such  thing  as  a  general  rule. 
A  latoyer  who  is  well  stored  with  these  rules  would  be  no  better  than 
any  other  man  that  is  -without  them,  if  by  mere  force  of  speculative 
reasoning  it  might  be  shown  that  the  application  of  such  and  such  a 
rule  would  be  productive  of  such  and  such  an  inconvenience,  and 
therefore  ought  not  to  prevail  ;  but  if  any  general  rule  ought  to  prevail, 
this  is  certainly  one  that  is  as  fixed,  formal,  and  universal  as  any  that 
can  be  stated  in  a  Court  of  Justice." 

In  Whyman  \.  Garth,  8  Ex.  807,  Pollock,  C.  B.,  said,  "  The  par- 
ties are  supposed  to  have  agreed  inter  se  that  the  deed  shall  not  be 
given  in  evidence  without  his"  (the  attesting  witness)  "being  called  to 
depose  to  the  circumstances  attending  its  execution." 

In  very  ancient  times,  when  the  jury  were  witnesses  as  to  matter  of 
fact,  the  attesting  witnesses  to  deeds  (if  a  deed  came  in  question)  would 
seem  to  have  been  summoned  with,  and  to  have  acted  as  a  sort  of  as- 
sessors to,  the  jury.     See  as  to  this,  Bracton,  fo.  38  a  ;  Fortescue  de 


NOTEf  1  THE  LAW  OF  EVIDENCE.  265 


Laudibiis,  ch.  xxxii.  with  Seklcn's  note  ;  and  cases  collected  from  the 
Year-books  in  Brooke's  Abridgement,  tit.  Testinoignes. 

For  the  present  rule,  and  the  ^ceptions  to  it,  see  i  Ph.  Ev.  242- 
261  ;  T.  E.  ss.  1637-42  ;  R.  N.  P.  147-50  ;  Best,  ss.  220,  etc. 

The  old  rule  which  applied  to  all  attested  documents  was  restricted 
to  those  required  to  be  attested  by  law,  by  17  &  18  Vict,  c.  125,  s.  26, 
and  28  &  29  Vict.  c.  18,  ss.  i  &  7. 

NOTE  XXIX. 
(to  Article  72.) 

For  these  rules  in  greater  detail,  see  i  Ph.  Ev.  452-3,  and  2  Ph.  Ev. 
272-289  ;  T.  E.  ss.  419-426  ;  R.  N.  P.  8  cS:  9. 

The  principle  of  all  the  rules  is  fully  explained  in  the  cases  cited 
in  the  footnotes,  more  particularly  in  Divycr  v.  Colliits,  7  Ex.  639. 
In  that  case  it  is  held  that  the  object  of  notice  to  produce  is  "to  en- 
able the  party  to  have  the  document  in  Court,  and  if  he  does  not,  to 
enable  his  opponent  to  give  parol  evidence  ...  to  exclude  the 
argument  that  the  opponent  has  not  taken  all  reasonable  means  to  pro- 
cure the  original,  which  he  must  do  before  he  can  be  permitted  to 
make  use  of  secondary  evidence"  (p.  647-8). 

NOTE   XXX. 

(TO  Article  75.) 

Mr.  Phillipps  (ii.  196)  says,  that  upon  a  plea  of  nul  ticl  record,  the 
original  record  must  be  produced  if  it  is  in  the  same  Court. 

Mr.  Taylor  (s.  1379)  says,  that  upon  prosecutions  for  perjury  as- 
signed upon  any  judicial  document  the  original  must  be  produced. 
The  authorities  given  seem  to  me  hardly  to  bear  out  either  of  these 
statements.  They  show  that  the  production  of  the  original  in  such 
cases  is  the  usual  course,  but  not,  I  think,  that  it  is  necessary.  The 
case  of  Lady  Dartmouth  v.  Roberts,  16  Ea.  334,  is  too  wide  for  the 
proposition  for  which  it  is  cited.  The  matter,  however,  is  of  little 
practical  importance. 

NOTE    XXXI. 
(TO  Articles  77  &  78.) 

The  learning  as  to  exemplifications  and  office-copies  will  be  found 
in  the  following  authorities  :  Gilbert's  Law  of  Evidence,  11-20;  Buller, 


266  A  DIGEST  OF  [Notes. 

Nisi  Prius,  228,  and  following  ;  Starkie,  256-66  (fully  and  very  con- 
veniently) ;  2  Ph.  Ev.  196-200  ;  Ti  E.  ss.  1380-4  ;  R.  N.  P.  1 12-15. 
The  second  paragraph  of  article  77  is  founded  on  Appleton  v.  Bray- 
hrook,  6  M.  &  S.  39. 

As  to  exemplifications  not  under  the  Great  Seal,  it  is  remarkable 
that  the  Judicature  Acts  give  no  Seal  to  the  Supreme  Court,  or  the 
High  Court,  or  any  of  its  divisions. 

NOTE    XXXII. 
(TO  Article  90.) 

The  distinction  between  this  and  the  following  article  is,  that  arti- 
cle 90  defines  the  cases  in  which  documents  are  exclusive  evidence  of 
the  transactions  which  they  embody,  while  article  91  deals  with  the 
interpretation  of  documents  by  oral  evidence.  The  two  subjects  are 
so  closely  connected  together,  that  they  are  not  usually  treated  as  dis- 
tinct ;  but  they  are  so  in  fact.  A  and  B  make  a  contract  of  marine  in- 
surance on  goods,  and  reduce  it  to  writing.  They  verbally  agree  that 
the  goods  are  not  to  be  shipped  in  a  particular  ship,  though  the  con- 
tract mades  no  such  reservation.  They  leave  unnoticed  a  condition 
usually  understood  in  the  business  of  insurance,  an>d  they  make  use  of 
a  technical  expression,  the  meaning  of  which  is  not  commonly  known. 
The  law  does  not  permit  oral  evidence  to  be  given  of  the  exception  as 
to  the  particular  ship.  It  does  permit  oral  evidence  to  be  given  to  an- 
nex the  condition  ;  and  thus  far  it  decides  that  for  one  purpose  the 
document  shall,  and  that  for  another  it  shall  not,  be  regarded  as  ex- 
clusive evidence  of  the  terms  of  the  actual  agreement  between  the  par- 
ties. It  also  allows  the  technical  term  to  be  explained,  and  in  doing 
so  it  interprets  the  meaning  of  the  document  itself.  The  two  opera- 
tions are  obviously  different,  and  their  proper  performance  depends 
upon  different  principles.  The  first  depends  upon  the  principle  that 
the  object  of  reducing  transactions  to  a  written  form  is  to  take  security 
against  bad  faith  or  bad  memory,  for  which  reason  a  writing  is  pre- 
sumed as  a  general  rule  to  embody  the  final  and  considered  determin- 
ation of  the  parties  to  it.  The  second  depends  on  a  consideration  of 
the  imperfections  of  language,  and  of  the  inadequate  manner  in  which 
people  adjust  their  words  to  the  facts  to  which  they  apply. 


Notes.]  THE  LAW  OF  EVIDENCE.  267 

The  rules  themselves  are  not,  I  think,  difficult  either  to  state,  to  un- 
derstand, or  to  remember ;  but  they  are  by  no  means  easy  to  apply, 
inasmuch  as  from  the  nature  of  the  case  an  enormous  number  of  trans- 
actions fall  close  on  one  side  or  the  other  of  most  of  them.  Hence 
the  exposition  of  these  rules,  and  the  abridgment  of  all  the  illustra- 
tions of  them  which  have  occurred  in  practice,  occupy  a  very  large 
space  in  the  different  text  writers.  They  will  be  found  in  2  Ph.  Ev. 
332-424;  T.  E.  ss.  1031-1110;  Star.  648-731;  Best  (very  shortly 
and  imperfectly),  ss.   226-229  ;  R.  N.  P.  (an  immense  list  of  cases), 

17-35- 

As  to  paragraph  (4),  which  is  founded  on  the  case  of  Goss  v.  Lord 
N'ttgettt,  it  is  to  be  observed  that  the  paragraph  is  purposely  so  drawn 
as  not  to  touch  the  question  of  the  effect  of  the  Statute  of  Frauds.  It 
was  held  in  effect  in  Goss  v.  Lord  Nugent  that  if  by  reason  of  the 
Statute  of  Frauds  the  substituted  contract  could  not  be  enforced,  it  would 
not  have  the  effect  of  waiving  part  of  the  original  contract ;  but  it  seems 
the  better  opinion  that  a  verbal  rescission  of  a  contract  good  under  the 
Statute  of  Frauds  would  be  good.  See  Ahble  v.  Ward,  L.  R.  2  Ex. 
135,  and  Pollock  on  Contracts,  411,  note  (6).  A  contract  by  deed  can 
be  released  only  by  deed,  and  this  case  also  would  fall  within  the  pro- 
viso to  paragraph  (4). 

The  cases  given  in  the  illustrations  will  be  found  to  mark  sufficiently 
the  various  rules  stated.  As  to  paragraph  (5)  a  very  large  collection 
of  cases  will  be  found  in  the  notes  to  Wigglesu<orth  v.  Dallison,  1  S. 
L.  C.  598-628,  but  the  consideration  of  them  appears  to  belong  rather 
to  mercantile  law  than  to  the  Law  of  Evidence.  For  instance,  the 
question  what  stipulations  are  consistent  with,  and  what  are  contradic- 
tory to,  the  contract  formed  by  subscribing  a  bill  of  exchange,  or  the 
contract  between  an  insurer  and  an  underwriter,  are  not  questions  of 
the  Law  of  Evidence. 

NOTE    XXXIIL 

(to  Article  91.) 

Perhaps  the  subject-matter  of  this  article  does  not  fall  strictly  within 
the  Law  of  Evidence,  but  it  is  generally  considered  to  do  so  ;  and  as 
it  has  always  been  treated  as  a  branch  of  the  subject,  I  have  thought  i^ 
l^est  to  deal  with  it, 


268  A  DIGEST  OF  [Notes. 

The  general  authorities  for  the  propositions  in  the  text  are  the  same 
as  those  specified  in  the  last  note  ;  but  the  great  authority  on  the  sub- 
ject is  the  work  of  Vice-Chancellor  Wigram  on  Extrinsic  Evidence. 
Article  91,  indeed,  will  be  found,  on  examination,  to  differ  from  the 
six  propositions  of  Vice-Chancellor  Wigram  only  in  its  arrangement 
and  form  of  expression,  and  in  the  fact  that  it  is  not  restricted  to  wills. 
It  will,  I  think,  be  found,  on  examination,  that  every  case  cited  by  the 
Vice-Chancellor  might  be  used  as  an  illustration  of  one  or  the  other  of 
the  propositions  contained  in  it. 

It  is  difficult  to  justify  the  line  drawn  between  the  rule  as  to  cases  in 
which  evidence  of  expressions  of  intention  is  admitted  and  cases  in 
which  it  is  rejected  (paragraph  7,  illustrations  {k),  (/),  and  paragraph  8, 
illustration  («)).  When  placed  side  by  side,  such  cases  as  Doe  v.  His- 
cocks  (illustration  {k))  and  Doe  v.  N^eeds  (illustration  («))  produce  a 
singular  effect.  The  vagueness  of  the  distinction  between  them  is 
indicated  by  the  case  of  Charter  v.  Charter,  L.  R.  2  P.  &  D.  315.  In 
this  case  the  testator  Forster  Charter  appointed  "  my  son  Forster 
Charter"  his  executor.  He  had  two  sons,  William  Forster  Charter 
and  Charles  Charter,  and  many  circumstances  pointed  to  the  conclu- 
sion that  the  person  whom  the  testator  wished  to  be  his  executor  was 
Charles  Charter.  Lord  Penzance  not  only  admitted  evidence  of  all  the 
circumstances  of  the  case,  but  expressed  an  opinion  (p.  319)  that,  if  it 
were  necessary,  evidence  of  declarations  of  intention  might  be  admitted 
under  the  rule  laid  down  by  Lord  Abinger  in  Hiscocks  v.  Hiscocks,  be- 
cause part  of  the  language  employed  ("my  son ■  Charter  ")  applied 

correctly  to  each  son,  and  the  remainder,  "Forster,"  to  neither.  This 
mode  of  construing  the  rule  would  admit  evidence  of  declarations  of 
intention  both  in  cases  falling  under  paragraph  8,  and  in  cases  falling 
under  paragraph  7,  which  is  inconsistent  not  only  with  the  reasoning 
in  the  judgment,  but  with  the  actual  decision  in  Doe  v.  Hiscocks.  It  is 
also  inconsistent  with  the  principles  of  the  judgment  in  the  later  case 
oiAllgoodv.  Blake,  L.  R.  8  Ex.  160,  where  the  rule  is  stated  by  Black- 
jnirn,  J.,  as  follows:  —  "In  construing  a  will,  the  Court  is  entitled  to 
put  itself  in  the  position  of  the  testator,  and  to  consider  all  material 
facts  and  circumstances  known  to  the  testator  with  reference  to  which 
he  is  to  be  taken  to  have  used  the  words  in  the  will,  and  then  to  de- 
clare what  is  the  intention  evidenced  by  the  words  used  with  reference 
to  those  facts  and  circumstances  whicli  were  (or  ought  to  have  been)  in 


Notes.]  THE  LAW  OF  EVIDENCE.  269 

the  mind  of  the  testator  when  he  used  those  words."  After  quoting 
Wigram  on  Extrinsic  Evidence,  and'Z>(7t'v.  Iliscocks,  he  adds  :  "No 
doubt,  in  many  cases  the  testator  has,  for  tlie  moment,  forgotten  or 
overlooked  tlie  material  facts  and  circumstances  which  he  well  knew. 
And  the  consequence  sometimes  is  that  he  uses  words  which  express 
an  intention  which  he  would  not  have  wished  to  express,  and  would 
ha^'e  altered  if  he  had  been  reminded  of  the  facts  and  circumstances. 
But  the  Court  is  to  construe  the  will  as  made  by  the  testator,  not  to 
make  a  will  for  him  ;  and  therefore  it  is  bound  to  execute  his  expressed 
intention,  even  if  there  is  great  reason  to  believe  that  he  has  by  bluur 
der  expressed  what  he  did  not  mean."  The  part  of  Lord  Penzance's 
judgment  alrove  referred  to  was  unanimously  overruled  in  the  House 
of  Lords  ;  though  the  Court,  being  equally  divided  as  to  the  construc- 
tion of  the  will,  refused  to  reverse  the  judgment,  upon  the  principle 
"prasumittir  fro  negante.'''' 

Conclusive  as  the  authorities  upon  the  subject  are,  it  may  not,  per- 
haps, be  presumptuous  to  express  a  doubt  whether  the  conflict  between 
a  natural  wish  to  fulfil  the  intention  which  the  testator  would  have 
formed  if  he  had  recollected  all  the  circumstances  of  the  case  ;  the  wish 
to  avoid  the  evil  of  permitting  written  instruments  to  be  varied  by  oral 
evidence  ;  and  the  wish  to  give  effect  to  wills,  has  not  produced  in 
practice  an  illogical  compromise.  The  strictly  logical  course,  I  think, 
would  be  either  to  admit  declarations  of  intention  both  in  cases  falling 
under  paragraph  7,  and  in  cases  falling  under  paragraph  8,  or  to  ex- 
clude such  evidence  in  both  classes  of  cases,  and  to  hold  void  for  un- 
certainty every  bequest  or  devise  which  was  shown  to  be  uncertain  in 
its  application  to  facts.  Such  a  decision  as  that  in  Stringer  v.  Gar- 
diner, the  result  of  which  was  to  give  a  legacy  to  a  person  whom  the 
testator  had  no  wish  to  benefit,  and  who  was  not  either  named  or 
described  in  his  will,  appears  to  me  to  be  a  practical  refutation  of  the 
principle  or  rule  on  which  it  is  based. 

Of  course  every  document,  whatever,  must  to  some  extent  be  inter- 
preted by  circumstances.  However  accurate  and  detailed  a  description 
of  things  and  persons  may  be,  oral  evidence  is  always  wanted  to  show 
that  persons  and  things  answering  the  description  exist ;  and  therefore 
in  every  case  whatever,  every  fact  must  be  allowed  to  be  proved  to 
which  the  document  does,  or  probably  may,  refer  ;  but  if  more  evidence 
than  this  is  admitted,  if  the  Court  may  look  at  circumstances  which 


270  A  DIGEST  OF  [Notes. 

affect  the  probability  that  the  testator  would  form  this  intention  or 
that,  why  should  declarations  of  intention  be  excluded  ?  If  the  ques- 
tion is,  "What  did  the  testator  say?"  why  should  the  Court  look  at 
the  circumstances  that  he  lived  with  Charles,  and  was  on  bad  temis 
with  William  ?  How  can  any  amount  of  evidence  to  show  that  the 
testator  intended  to  write  "Charles  "  show  that  what  he  did  write  means 
"Charles"  ?  To  say  that  "Forster"  means  "Charles"  is  like  saying 
that  "two"  means  "three."  If  the  question  is  "What  did  the  tes- 
tator wish?"  why  should  the  Court  refuse  to  look  at  his  declarations 
of  intention?  And  what  third  question  can  be  asked?  The  only  one 
which  can  be  suggested  is,  ' '  What  would  the  testator  have  meant  if 
he  had  deliberately  used  unmeaning  words?"  The  only  answer  to 
this  would  be,  he  would  have  had  no  meaning,  and  would  have  said 
nothing,  and  his  bequest  should  be  pro  tanto  void. 

NOTE  XXXIV. 

(to  Article  92.) 

See  2  Ph.  Ev.  364;  Star.  726;  T.  E.  (from  Greenleaf),  s,  105 1. 
Various  cases  are  quoted  by  these  writers  in  support  of  the  first  part  of 
the  proposition  in  the  article  ;  but  R.  v.  Cheadle  is  the  only  one  which 
appears  to  me  to  come  quite  up  to  it.     They  are  all  settlement  cases. 

NOTE  XXXV. 

(TO  Chapter  XIII.) 

In  this  and  the  following  chapter  many  matters  usually  introduced 
into  treatises  on  evidence  are  omitted,  because  they  appear  to  belong 
either  to  the  subject  of  pleading,  or  to  different  branches  of  Substan- 
tive Law.  For  instance,  the  rules  as  to  the  burden  of  proof  of  nega- 
tive averments  in  criminal  cases  (i  Ph.  Ev.  555,  etc.;  3  Russ.  on  Cr. 
276-9)  belong  rather  to  criminal  procedure  than  to  evidence.  Again, 
in  every  branch  of  Substantive  Law  there  are  presumptions,  more  or 
less  numerous  and  important,  which  can  be  understood  only  in  con- 
nection with  those  branches  of  the  law.  Such  are  the  presumptions 
as  to  the  ownership  of  property,  as  to  consideration  for  a  bill  of  ex- 
change, as  to  many  of  the  incidents  of  the  contract  of  insurance.  Pass- 
ing over  all  these,  I  have  embodied  in  Chapter  XIV  those  presump- 


Notes.]  the  LAW  OF  EVIDENCE.  271 

tions  only  which  bear  upon  the  proof  of  facts  likely  to  be  proved  on  a 
great  variety  of  different  occasions,  and  those  estoppels  only  which 
arise  out  of  matters  of  fact,  as  distinguished  from  those  which  arise 
upon  deeds  or  judgments. 

NOTE  XXXVI. 

(TO  Article  94.) 

The  presumption  of  innocence  belongs  principally  to  the  Criminal 
Law,  though  it  has,  as  the  illustrations  show,  a  bearing  on  the  proof 
of  ordinary  facts.  The  question,  "What  doubts  are  reasonable  in 
criminal  cases?"  belongs  to  the  Criminal  Law. 

NOTE  xxxvn. 

(TO  Article  ioi.) 

The  first  part  of  this  article  is  meant  to  give  the  effect  of  the  pre- 
sumption, omnia  esse  rite  acta,  i  Ph.  Ev.  480,  etc. ;  T.  E.  ss.  124, 
etc. ;  Best,  s.  353,  etc.  This,  like  all  presumptions,  is  a  very  vague 
and  fluid  rule  at  best,  and  is  applied  to  a  great  variety  of  different 
subject-matters. 

NOTE  xxxvin. 
(to  Articles  102-105.) 

These  articles  embody  the  principal  cases  of  estoppels  in  pais,  as 
distinguished  from  estoppels  by  deed  and  by  record.  As  they  may  be 
applied  in  a  great  variety  of  ways  and  to  infinitely  various  circum- 
stances, the  application  of  these  rules  has  involved  a  good  deal  of  de- 
tail. The  rules  themselves  appear  clearly  enough  on  a  careful  exam- 
ination of  the  cases.  The  latest  and  most  extensive  collection  of  cases 
is  to  be  seen  in  2  S.  L.  C.  851-880,  where  the  cases  referred  to  in  the 
text  and  many  others  are  abstracted.  See,  too,  i  Ph.  Ev.  350-3  ;  T. 
E.  ss.  88-90,  776,  778 ;  Best,  s.  543. 

Article  102  contains  the  rule  in  Pickanl  v.  Sears,  6  A.  &  E.  474,  as 
interpreted  and  limited  liy  Parke,  B.,  in  Freeman  v.  Cooke,  6  Bing. 
174,  179.     The  second  paragraph  of  the  article  is  founded  on  the  ap- 


272  A  DIGEST  OF  [Notes. 

plication  of  this  rule  to  the  case  of  a  negligent  act  causing  fraud.  The 
rule,  as  expressed,  is  collected  from  a  comparison  of  the  following 
cases  :  Bank  of  Ireland  v.  Evans,  5  PI.  L.  C.  389  ;  Swan  v.  British 
and  Australasian  Company,  which  was  before  three  Courts,  see  7  C. 
B.  (N.  S.)  448;  7  H.  &  N.  603  ;  2  H.  &  C.  175,  where  the  judgment 
of  the  majority  of  the  Court  of  Exchequer  was  reversed  ;  and  Halifax 
Guardians  v.  Wheehvright,  L.  R.  10  Ex.  183,  in  which  all  the  cases 
are  referred  to.  All  of  these  refer  to  Young  v.  Grote  (4  Bing.  253), 
and  its  authority  has  always  been  upheld,  though  not  always  on  the 
same  ground.  The  rules  on  this  subject  are  stated  in  general  terms  in 
Carr  v.  L.  isr'  N".   IV.  Kaihvay,  L.  R.  10  C.  P.  316-17. 

It  would  be  difficult  to  find  a  better  illustration  of  the  gradual  way 
in  which  the  judges  construct  rules  of  evidence,  as  circumstances  re- 
quire it,  than  is  afforded  by  a  study  of  these  cases. 

NOTE   XXXIX. 

(to  Chapter  XV.) 

The  law  as  to  the  competency  of  witnesses  was  formerly  the  most, 
or  nearly  the  most,  important  and  extensive  branch  of  the  Law  of  Evi- 
dence. Indeed,  rules  as  to  the  incompetency  of  witnesses,  as  to  the 
proof  of  documents,  and  as  to  the  proof  of  some  particular  issues,  are 
nearly  the  only  rules  of  evidence  treated  of  in  the  older  authorities. 
Great  part  of  Bentham's  '  Rationale  of  Judicial  Evidence'  is  directed 
to  an  exposure  of  the  fundamentally  erroneous  nature  of  the  theory 
upon  which  these  rules  were  founded  ;  and  his  attack  upon  them  has 
met  with  a  success  so  nearly  complete  that  it  has  itself  become  obso- 
lete. The  history  of  the  subject  is  to  be  found  in  Mr.  Best's  work, 
book  i.  part  i.  ch.  ii.  ss.  132-188.  See,  too,  T.  E.  1210-57,  and  R. 
N.  P.  177-81.     As  to  the  old  law,  see  i  Ph.  Ev.  i,  104. 

NOTE   XL. 

(TO  Article  107.) 

The  authorities  for  the  first  paragraph  are  given  at  great  length  in 
Best,  ss.  146-165.  See,  too,  T.  E.  s.  1240.  As  to  paragraph  2,  see 
Best,  s.  148  ;  i  Ph.  Ev.  7  ;  2  Ph.  Ev.  457  ;  T.  E.  s.  1241.  The  con- 
cluding words  of  the  last  paragraph  are  framed  with  reference  to  the 


Notes.]  THE  LAW  OF  EVIDENCE.  273 

alteration  in  the  law  as  to  the  competency  of  witnesses  made  by  32  & 
33  Vict.  c.  68,  s,  4.  The  practice  of  insisting  on  a  child's  belief  in 
punishment  in  a  future  state  for  lying  as  a  condition  of  the  admissi- 
bility of  its  evidence  leads  to  anecdotes  and  to  scenes  little  calculated 
to  increase  respect  either  for  religion  or  for  the  administration  of  jus- 
tice. The  statute  referred  to  would  seem  to  render  this  unnecessary. 
If  a  person  who  deliberately  and  advisedly  rejects  all  belief  in  God 
and  a  future  state  is  a  competent  witness,  h  fortiori,  a  child  who  has 
received  no  instructions  on  the  subject  must  be  competent  also. 

NOTE   XLI. 
(TO  Article  108.) 

At  Common  Law  the  parties  and  their  husbands  and  wives  were  in- 
competent in  all  cases.  This  incompetency  was  removed  as  to  the 
parties  in  civil,  but  not  in  criminal  cases,  by  14  &  15  Vict.  c.  99,  s.  2 ; 
and  as  to  their  husbands  and  wives,  by  16  &  17  Vict.  c.  83,  ss.  I,  2. 
But  sec.  2  expressly  reserved  the  Common  Law  as  to  criminal  cases 
and  proceedings  instituted  in  consequence  of  adultery. 

The  words  relating  to  adultery  were  repealed  by  32  &  33  Vict.  c.  68, 
s.  3,  which  is  the  authority  for  the  next  article.      • 

Persons  interested  and  persons  who  had  been  convicted  of  certain 
crimes  were  also  incompetent  witnesses,  but  their  incompetency  was 
removed  by  6  &  7  Vict.  c.  85. 

The  text  thus  represents  the  effect  of  the  Common  Law  as  varied  by 
four  distinct  statutory  enactments. 

By  5  &  6  Will.  IV.  c.  50,  s.  100,  inhabitants,  etc.,  were  made  com- 
petent to  give  evidence  in  prosecutions  of  parishes  for  non-repair  of 
highways,  and  this  was  extended  to  some  other  cases  by  3  &  4  Vict.  c. 
26.  These  enactments,  however,  have  been  repealed  by  37  &  38  Vict, 
c.  35,  and  c.  96  (the  Statute  Law  Revision  Acts,  1874),  respectively. 
Probably  this  was  done  under  the  impression  that  the  enactments  were 
rendered  obsolete  by  14  &  15  Vict.  c.  99,  s.  2,  which  made  parties  ad- 
missible witnesses.  A  question  might  be  raised  upon  the  effect  of  this, 
as  sec.  3  expressly  excepts  criminal  proceedings,  and  a  prosecution  for 
a  nuisance  is  such  a  proceeding.  The  result  would  seem  to  be,  that  in 
cases  as  to  the  repair  of  highways,  bridges,  etc.,  inhabitants  and  over- 
seers are  incompetent,   unless,    indeed,  the  Courts  should  hold    that 


^74  A  bid  EST  OF  tNOTES. 

they  are  substantially  civil  proceedings,  as  to  which  see  R.  v.  Russell, 
3  E.  &  B.  942. 

NOTE  XLII. 
(to  Article  hi.) 

The  cases  on  which  these  articles  are  founded  are  only  Nisi  Prius 
decisions  :  but  as  they  are  quoted  by  writers  of  eminence  (i  Ph.  Ev. 
139  ;  T.  E.  s.  859),  I  have  referred  to  them. 

In  the  trial  of  Lord  Thanet,  for  an  attempt  to  rescue  Arthur  O'Con- 
nor, Sergeant  Shepherd,  one  of  the  special  commissioners,  before 
whom  the  riot  took  place  in  court  at  Maidstone,  gave  evidence,  R.  v. 
Lord  Thanet,  27  S.  T.  836. 

I  have  myself  been  called  as  a  witness  on  a  trial  for  perjury  to  prove 
what  was  said  before  me  when  sitting  as  an  arbitrator.  The  trial  took 
place  before  Mr.  Justice  Hayes  at  York,  in  1869. 

As  to  the  case  of  an  advocate  giving  evidence  in  the  course  of  a  trial 
in  which  he  is  professionally  engaged,  see  several  cases  cited  and  dis- 
cussed in  Best,  ss.  184-6. 

In  addition  to  those  cases,  reference  may  be  made  to  the  trial  of 
Home  Tooke  for  a  libel  in  1777,  when  he  proposed  to  call  the  Attor- 
ney-General (Lord  Thurlow),  20  S.  T.  740.  These  cases  do  not  appear 
to  show  more  than  that,  as  a  rule,  it  is  for  obvious  reasons  improper 
tliat  those  who  conduct  a  case  as  advocates  should  be  called  as  wit- 
nesses in  it.  Cases,  however,  might  occur  in  which  it  might  be  abso- 
lutely necessary  to  do  so.  For  instance,  a  solicitor  engaged  as  an 
advocate  might,  not  at  all  imj^robably,  be  the  attesting  witness  to  a 
deed  or  will. 

NOTE   XLIIL 

(to  Article  115.) 

This  article  sums  up  the  rule  as  to  professional  communications, 
every  part  of  which  is  explained  at  great  length,  and  to  much  the  same 
effect,  in  i  Ph.  Ev.  105  -122  ;  T.  E.  ss.  832-9  ;  Best,  s.  581.  It  is  so 
well  established  and  so  -plain  in  itself  that  it  requires  only  negative 
illustrations.  It  is  stated  at  length  by  Lord  Brougham  in  Greenough 
V.  Caskell,  i  M.  &  K.  98. 


Notes.;)  THE  LAW  Oi^^  EVIDENCE.  2^5 

NOTE   XLIV. 
(to  Article  117.) 

The  question  whether  clergymen,  and  particularly  whether  Roman 
Catholic  priests,  can  be  compelled  to  disclose  confessions  made  to  them 
professionally,  has  never  been  solemnly  decided  in  England,  though  it 
is  stated  by  the  text  writers  that  they  can.  See  i  Ph,  Ev.  109  ;  T.  p]. 
ss.  837-8  ;  R.  N.  P.  190 ;  Starkie,  40.  The  question  is  discussed  at 
some  length  in  Best,  ss.  583-4  ;  and  a  pamphlet  was  written  to  main- 
tain the  existence  of  the  privilege  by  Mr.  Baddeley  in  1865.  Mr.  Best 
shows  clearly  that  none  of  the  decided  cases  are  directly  in  point,  ex- 
cept Butler  V.  Afoore  (MacNally,  253-4),  and  possibly  j'v'.  v.  Spurkes, 
which  was  cited  by  Garrow  in  arguing  Dtt  Ban-e  v.  Livette  before 
Lord  Kenyon  (l  Pea.  108).  The  report  of  his  argument  is  in  these 
words  :  "The  prisoner  being  a  Papist,  had  made  a  confession  l:)efore 
a  Protestant  clergyman  of  the  crime  for  which  he  was  indicted  ;  and 
that  confession  was  permitted  to  be  given  in  evidence  on  the  trial " 
(before  Buller,  J.),  "and  he  was  convicted  and  executed."  The  re- 
port is  of  no  value,  resting  as  it  does  on  Peake's  note  of  Garrow' s 
statement  of  a  case  in  which  he  was  probably  not  personally  con- 
cerned ;  and  it  does  not  appear  how  the  objection  was  taken,  or 
whether  the  matter  was  ever  argued.  Lord  Kenyon,  however,  is  said 
to  have  observed  :  "  I  should  have  paused  before  I  admitted  the  evi- 
dence there  admitted." 

Mr.  Baddeley's  argument  is  in  a  few  words,  that  the  privilege  must 
have  been  recognized  when  the  Roman  Catholic  religion  was  establislied 
by  law,  and  that  it  has  never  been  taken  away. 

I  think  that  the  modern  Law  of  Evidence  is  not  so  old  as  the  Ref- 
ormation, but  has  grown  up  by  the  practice  of  the  Courts,  and  l)y  de- 
cisions in  the  course  of  the  last  two  centuries.  It  came  into  existence 
at  a  time  when  exceptions  in  favor  of  auricular  confessions  to  Roman 
Catholic  priests  were  not  likely  to  be  made.  The  general  rule  is  that 
every  person  must  testify  to  what  he  knows.  An  exception  to  the  gen- 
eral rule  has  been  established  in  regard  to  legal  advisers,  but  there  is 
nothing  to  show  that  it  extends  to  clergymen,  and  it  is  usually  so 
stated  as  not  to  include  them.  This  is  the  ground  on  which  the  Irish 
Master  of  the  Rolls  (Sir  Michael  Smith)  decided  the  case  of  Butler  v. 
Moore  in  i8o2  (MacNally,  Ev.  253-4).      It  was  a  demurrer  to  a  rule  to 


276  A  DIGEST  OF  [Notes. 

administer  interrogatories  to  a  Roman  Catholic  priest  as  to  matter 
which  he  said  he  knew,  if  at  all,  professionally  only.  The  Judge  said, 
"  It  was  the  undoubted  legal  constitutional  right  of  every  subject  of 
the  realm  who  has  a  cause  depending,  to  call  upon  a  fellow-subject  to 
testify  what  he  may  know  of  the  matters  in  issue  ;  and  every  man  is 
bound  to  make  the  discovery,  unless  specially  exempted  and  protected 
by  law.  It  was  candidly  admitted,  that  no  special  exemption  could  be 
shown  in  the  present  instance,  and  analogous  cases  and  principles 
alone  were  relied  upon."  The  analogy,  however,  was  not  considered 
sufficiently  strong. 

Several  judges  have,  for  obvious  reasons,  expressed  the  strongest 
disinclination  to  compel  such  a  disclosure.  Thus  Best,  C.J.,  said,  "I, 
for  one,  will  never  compel  a  clergyman  to  disclose  communications 
made  to  him  by  a  prisoner  ;  but  if  he  chooses  to  disclose  them  I  shall 
receive  them  in  evidence"  {obiter,  in  Broad  v.  Pitt,  3  C.  &  P.  518). 
Alderson,  B.,  thought  (rather  it  would  seem  as  a  matter  of  good  feeling 
than  as  a  matter  of  positive  law)  that  such  evidence  should  not  be 
given.     R.  v.  Griffin,  6  Cox,  Cr.  Ca.  219. 


NOTE   XLV. 

(to  Articles  126,  127,  128.) 

These  articles  relate  to  matters  almost  too  familiar  to  require  author- 
ity, as  no  one  can  watch  the  proceedings  of  any  Court  of  Justice  with- 
out seeing  the  rules  laid  down  in  them  continually  enforced.  The 
subject  is  discussed  at  length  in  2  Ph.  Ev.  pt.  2,  chap.  x.  p.  456,  etc.; 
T.  E.  s.  1258,  etc.;  see,  too.  Best,  s.  631,  etc.  In  respect  to  leading 
questions  it  is  said,  "It  is  entirely  a  question  for  the  presiding  judge 
whether  or  not  the  examination  is  being  conducted  fairly."  R,  N,  P. 
182. 

NOTE   XLVI. 
(to  Article  129.) 

This  article  states  a  practice  which  is  now  common,  and  which  never 
was  more  strikingly  illustrated  than  in  the  case  referred  to  in  the  illus- 


Notes.]  THE  LAW  OF  EVIDENCE.  277 


tration.  But  the  practice  which  it  represents  is  modern  ;  and  I  sub- 
mit that  it  requires  the  qualification  suggested  in  the  text.  I  shall  not 
believe,  unless  and  until  it  is  so  decided  upon  solemn  argument,  that 
by  the  law  of  England  a  person  who  is  called  to  prove  a  minor  fact, 
not  really  disputed,  in  a  case  of  little  importance,  thereby  exposes 
himself  to  having  every  transaction  of  his  past  life,  however  private, 
inquired  into  by  persons  who  may  wish  to  serve  the  basest  purposes  of 
fraud  or  revenge  by  doing  so.  Suppose,  for  instance,  a  medical  man 
were  called  to  prove  the  fact  that  a  slight  wound  had  been  inflicted, 
and  been  attended  to  l)y  him,  would  it  be  lawful,  under  pretence  of 
testing  his  credit,  to  compel  him  to  answer  upon  oath  a  series  of  ques- 
tions as  to  his  private  affairs,  extending  over  many  years,  and  tending 
to  expose  transactions  of  the  most  delicate  and  secret  kind,  in  which 
the  fortune  and  character  of  other  persons  might  be  involved  ?  If  this 
is  the  law,  it  should  be  altered.  The  following  section  of  the  Indian 
Evidence  Act  (i  of  1872)  may  perhaps  be  deserving  of  consideration. 
After  authorizing,  in  sec.  147,  questions  as  to  the  credit  of  the  witness 
the  Act  proceeds  as  follows  in  sec.  148  : — 

"  If  any  such  question  relates  to  a  matter  not  relevant  to  the  suit  or 
proceeding,  except  in  so  far  as  it  affects  the  credit  of  the  witness  by 
injuring  his  cliaracter,  the  Court  shall  decide  whether  or  not  the  wit- 
ness shall  be  compelled  to  answer  it,  and  may,  if  it  thinks  fit,  warn 
the  witness  that  he  is  not  obliged  to  answer  it.  In  exercising  this  dis- 
cretion, the  Court  shall  have  regard  to  the  following  considerations  : — 

"  (i)  Such  questions  are  proper  if  they  are  of  such  a  nature  that  the 
truth  of  the  imputation  conveyed  by  them  would  seriously  affect  the 
opinion  of  the  Court  as  to  the  credibility  of  the  witness  on  the  matter 
to  which  he  testifies. 

"(2)  Such  questions  are  improper  if  the  imputation  which  they  con- 
vey relates  to  matters  so  remote  in  time  or  of  such  a  character  that 
the  truth  of  the  imputation  would  not  affect,  or  would  affect  in  a  slight 
degree,  the  opinion  of  the  Court  as  to  the  credibility  of  the  witness 
on  the  matter  to  which  he  testifies. 

"(3)  Such  questions  are  improper  if  there  is  a  great  disproportion 
between  the  importance  of  the  imputation  made  against  the  witness's 
character  and  the  importance  of  his  evidence." 


278  A  DIGEST  OP  [Notes. 


NOTE  XLVII. 
(to  Article  131.) 

The  words  of  the  two  sections  of  17  &  18  Vict.  c.  I25,  meant  to  be 
represented  by  this  article,  are  as  follows  : — 

22.  A  party  producing  a  witness  shall  not  be  allowed  to  impeach  his 
credit  by  general  evidence  of  bad  character ;  but  he  may,  in  case  the 
witness  shall,  in  the  opinion  of  the  judge,  prove  adverse,  contradict 
him  by  other  evidence,  or,  by  leave  of  the  judge,  prove  that  he  has 
made  at  other  times  a  statement  inconsistent  with  his  present  testi- 
mony ;  but  before  such  last-mentioned  proof  can  be  given,  the  circum- 
stances of  the  supposed  statement,  sufificient  to  designate  the  particular 
occasion,  must  be  mentioned  to  the  witness,  and  he  must  be  asked 
whether  or  not  he  has  made  such  statement. 

23.  If  a  witness,  upon  cross-examination  as  to  a  former  statement 
made  by  him  relative  to  the  subject-matter  of  the  cause,  and  inconsis- 
tent with  his  present  testimony,  does  not  distinctly  admit  that  he  made 
such  statement,  proof  may  be  given  that  he  did  in  fact  make  it  ;  but 
before  such  proof  can  be  given,  the  circumstances  of  the  supposed 
statement,  sufficient  to  designate  the  particular  occasion,  must  be  men- 
tioned to  the  witness,  and  he  must  be  asked  whether  or  not  he  has 
made  such  statement. 

The  sections  are  obviously  ill-arranged  ;  but  apart  from  this,  s.  22 
is  so  worded  as  to  suggest  a  doubt  whether  a  party  to  an  action  has  a 
right  to  contradict  a  witness  called  by  himself  whose  testimony  is  ad- 
verse to  his  interests.  The  words  "he  may,  in  case  the  witness  shall, 
in  the  opinion  of  the  judge,  prove  adverse,  contradict  him  by  other 
evidence,"  suggest  that  he  cannot  do  so  unless  the  judge  is  of  that 
opinion.  This  is  not,  and  never  was,  the  law.  In  Greenough  v.  Ec- 
cles,  5  C.  B.  (N.  S.),  p.  802,  Williams,  J,,  says  :  "The  law  was  clear 
that  you  might  not  discredit  your  own  witness  by  general  evidence  of 
bad  character  ;  but  you  might,  nevertheless,  contradict  him  by  other 
evidence  relevant  to  the  issue  ;"  and  he  adds  (p.  803)  :  "It  is  impos- 
sible to  suppose  that  the  Legislature  could  have  really  intended  to  im- 
pose any  fetter  whatever  on  the  right  of  a  party  to  contradict  his  own 
witness  by  other  evidence  relevant  to  the  issue — a  right  not  only  estab- 
lished by  authority,  but  founded  on  the  plainest  good  sense." 

Lord  Chief  Justice  Cockburn  said  of  the  22nd  section  :   "  There  has 


Notes.]  THE  LAW  OF  EVIDENCE.  279 

been  a  great  blunder  in  the  drawing  of  it,  and  on  the  part  of  those  who 
adopted  it."  .  .  .  "Perhaps  the  better  course  is  to  consider  the 
second  branch  of  the  section  as  altogether  superfluous  and  useless  (p. 
806)."     On  this  authority  I  have  omitted  it. 

For  many  years  before  the  Common  Law  Procedure  Act  of  1854  it 
was  held,  in  accordance  with  Queen  Caroline's  Case  (2  Br.  &  Bing. 
286-291),  that  a  witness  could  not  be  cross-examined  as  to  statements 
made  in  writing,  unless  the  writing  had  been  first  proved.  The  effect 
of  this  rule  in  criminal  cases  was  that  a  witness  could  not  be  cross- 
examined  as  to  what  he  had  said  before  the  magistrates  without  put- 
ting in  his  deposition,  and  this  gave  the  prosecuting  counsel  the  reply. 
Upon  this  subject  rules  of  practice  were  issued  by  the  judges  in  1837, 
when  the  Prisoner's  Counsel  Act  came  into  operation.  The  rules  are 
published  in  7  C.  &  P.  676.  They  would  appear  to  have  been  super- 
seded by  the  28  Vict.  c.  18. 

NOTE  XLVIII. 

The  Statute  Law  relating  to  the  subject  of  evidence  may  be  regarded 
either  as  voluminous  or  not,  according  to  the  view  taken  of  the  extent 
of  the  subject. 

The  number  of  statutes  classified  under  the  head  "Evidence"  in 
Chitty's  Statutes  is  35.  The  number  referred  to  under  that  head  in 
the  Index  to  the  Revised  Statutes  is  39.  Many  of  these,  however,  re- 
late only  to  the  proof  of  particular  documents,  or  matters  of  fact  which 
may  become  material  under  special  circumstances. 

Of  these  I  have  noticed  a  few,  which  for  various  reasons,  appeared 
important.  Such  are  :  34  &  35  Vict.  c.  112,  s.  19  (see  article  11);  9 
Geo,  IV.  c.  14,  s.  I,  amended  by  19  &  20  Vict.  c.  97,  s.  13  (see  article 
17) ;  9  Geo.  IV.  c.  14,  s.  3  ;  3  &  4  Will.  IV.  c.  42  (see  article  28) ;  11 
&  12  Vict.  c.  42,  s.  17  (article  33)  ;  30  &  31  Vict.  c.  35,  s.  6  (article 
34)  ;  7  James  I.  c.  12  (article  38)  ;  7  &  8  Geo.  IV.  c.  28,  s.  11,  amended 
by  6  &  7  Will.  IV.  c.  11 1 ;  24  &  25  Vict.  c.  96,  s.  116  ;  24  &  25  Vict. 
c.  99,  s.  37  (see  article  56) ;  8  &  9  Vict.  c.  10,  s,  6  ;  35  &  36  Vict.  c.  6, 
s.  4  (article  121)  ;  7  &  8  Will.  IIL  c.  3,  ss.  2-4 ;  39  &  40  Geo.  IIL  c. 
93  (article  122). 

Many,  again,  refer  to  pleading  and  practice  rather  than  evidence,  in 
the  s^nse  in  which  I  employ  the  word.     Such  are  the  Acts  which  en. 


28o  A  DIGEST  OF  .  [Notes. 

able  evidence  to  be  taken  on  commission  if  a  witness  is  abroad,   or 
relate  to  the  administration  of  interrogatories. 

Those  which  relate  directly  to  the  subject  of  evidence  as  defined  in 
the  Introduction,  are  the  ten  following  Acts  : — 


46  Geo.  III.  c.  37  (i  section  ;  see  article  120).  This  Act  qualifies 
the  rule  that  a  witness  is  not  bound  to  answer  questions  which  crimi- 
nate himself,  by  declaring  that  he  is  not  excused  from  answering  ques- 
tions which  fix  him  with  a  civil  liability. 


6  &^  7  Vict.  c.  85.     This  Act  abolishes  incompetency  from  interest 
or  crime  (4  sections  ;  see  article  106). 


8  <&^  9  Vict.  c.  113:  "An  Act  to  facilitate  the  admission  in  evi- 
dence of  certain  official  and  other  documents"  (8th  August,  1845  '  7 
sections). 

S.  I,  after  preamble  reciting  that  many  documents  are,  by  various 
Acts,  rendered  admissible  in  proof  of  certain  particulars  if  authenti- 
cated in  a  certain  way,  enacts  intei-  alia  that  proof  that  they  were  so 
authenticated  shall  not  be  required  if  they  purport  to  be  so  authenti- 
cated.    (Article  79.) 

S.  2.  Judicial  notice  to  be  taken  of  signatures  of  certain  judges. 
(Article  58,  latter  part  of  clause  8.) 

S.  3.  Certain  Acts  of  Parliament,  proclamations,  etc.,  may  be  proved 
by  copies  purporting  to  be  Queen's  printer's  copies.      (Article  81.) 

S.  4.  Penalty  for  forgery,  etc.  This  is  omitted  as  belonging  to  the 
Criminal  Law. 

Ss.  5,  6,  7.   Local  extent  and  commencement  of  Act. 


14  &  15  Vict.  c.  99  :  "An  Act  to  amend  the  Law  of  Evidence,"  7th 
August,  1851  (20  sections): — 

S.  I  repeals  part  of  6  &  7  Vict.  c.  85,  which  restricted  the  opera- 
tion of  the  Act, 


Notes.]  THE  LAW  OF  EVIDENCE.  281 

S.  2  makes  parties  admissible  witnesses,  except  in  certain  cases. 
(Effect  given  in  articles  106  &  108.) 

S.  3.  Persons  accused  of  crime,  and  their  husbands  and  wives,  not 
to  be  competent.      (Article  108.) 

S.  4.  The  first  three  sections  not  to  apply  to  proceedings  instituted 
in  consequence  of  adultery.  Repealed  by  32  &  33  Vict.  c.  68.  (Ef- 
fect of  repeal,  and  of  s.  3  of  the  last-named  Act  given  in  article  109.) 

S.  5.  None  of  the  sections  above  mentioned  to  affect  the  Wills  Act 
of  1838,  7  Will.  IV.  &  I  Vict.  c.  26.  (Omitted  as  part  of  the  Law  of 
Wills.) 

S.  6.  The  Common  Law  Courts  authorized  to  grant  inspection  of 
documents.     (Omitted  as  part  of  the  Law  of  Civil  Procedure.) 

S.  7.   Mode  of  proving  proclamations,  treaties,  etc.     (Article  84.) 

S.  8.  Proof  of  qualification  of  apothecaries.  (Omitted  as  part  of 
the  law  relating  to  medical  men.) 

Ss.  g,  10,  II.  Documents  admissible  either  in  England  or  in  Ireland, 
or  in  the  colonies,  without  proof  of  seal,  etc.,  admissible  in  all.  (Ar- 
ticle 80.) 

S.  12.  Proof  of  registers  of  British  ships.  (Omitted  as  part  of  the 
law  relating  to  shipping.) 

S.  13.  Proof  of  previous  convictions.  (Omitted  as  belonging  to 
Criminal  Procedure.) 

S.  14.  Certain  documents  provable  by  examined  copies  or  copies 
purporting  to  be  duly  certified.      (Article  79,  last  paragraph. ) 

S.  15.  Certifying  false  documents  a  misdemeanor.  (Omitted  as  be- 
longing to  Criminal  Law.) 

S.  16.  Who  may  administer  oaths.     (Article  125.) 

S.  17.  Penalties  for  forging  certain  documents.  (Omitted  as  be- 
longing to  the  Criminal  Law. ) 

S.  18.  Act  not  to  extend  to  Scotland.     (Omitted.) 

S.  19.   Meaning  of  the  word  "  Colony."     (Article  80,  note  I.) 

S.  20.  Commencement  of  Act 

5- 

17  &  18  Vict.  c.  125.  The  Common  Law  Procedure  Act  of  1854 
contained  several  sections  which  altered  the  Law  of  Evidence. 

S.  22.  How  far  a  party  may  discredit  his  own  witness.  (Articles 
131,  133  ;  and  see  Note  XLVIL) 


282  A  DIGEST  OF  [Notes 

S.  23.  Proof  of  contradictory  statements  by  a  witness  under  cross- 
examination.     (Article  131.) 

S.  24.  Cross-examination  as  to  previous  statements  in  writing.  (Ar- 
ticle 132.) 

S.  25.  Proof  of  a  previous  conviction  of  a  witness  may  be  given. 
(Article  130  (i).) 

S.  26.  Attesting  witnesses  need  not  be  called  unless  writing  requires 
attestation  by  law.     (Article  72.) 

S.  27,   Comparison  of  disputed  handwritings.      (Articles  49  and  52.) 

After  several  Acts,  giving  relief  to  Quakers,  Moravians,  and  Separa- 
tists, who  objected  to  take  an  oath,  a  general  measure  was  passed  for 
the  same  purpose  in  1861. 

6. 

24  &  25  Vict.  c.  66  (ist  August,  i86i,  3  sections) : — 

S.  I.  Persons  refusing  to  be  sworn  from  conscientious  motives  may 
make  a  declaration  in  a  given  form.     (Article  123.) 

S.  2.  Falsehood  upon  such  a  declaration  punishable  as  perjury. 
(Do.) 

S.  3.  Commencement  of  Act. 

7- 

28  Vict.  c.  18  (9th  May,  1865,  10  sections)  : — 
S.    I.   Sections  3 — 8  to  apply  to  all  courts  and  causes  crimmal  as 
well  as  civil. 


S.  3.  E 

.e-enac 

s  17  &  18  Vict,  c,  125,  s.  22. 

S.  4. 

s.  23. 

S.5. 

•'                 "           s.  24. 

8.6. 

8.25. 

S.  7. 

"                 "           s.  26. 

S.  8. 

"                 "           s.  27. 

The  effect  of  these  sections  is  given  in  the  articles  above  referred  to 

by  not  confining  them  to  proceedings  under  the  Common  Law  Pro- 
cedure Act,  1854. 

The  rest  of  the  Act  refers  to  other  subjects. 


31  &  32  Vict.  c.  37  (25th  June,  1868,  6  sections) : — 
S.  I.  Short  title. 


Notes.]  THE  LAW  OF  EVIDENCE.  283 


S.  2.  Certain  documents  may  be  proved  in  particular  ways.  (Art. 
83,  and  for  schedule  referred  to,  see  note  to  the  article.) 

S.  3.   The  Act  to  be  in  force  in  the  colonies.     (Article  83.) 

S.  4.  Punishment  of  forgery.  (Omitted  as  forming  part  of  the 
Criminal  Law.) 

S.  5.   Interpretation  clauses  embodied  (where  necessary)  in  article 

83- 

S.  6.  Act  to  be  cumulative  on  Common  Law.     (Implied  in  article 

73-) 

9. 

32  &  33  I'ict.  c.  68  (9th  August,  1869  ;  6  sections) : — 

S,  I.  Repeals  part  of  14  &  15  Vict.  c.  99,  s.  4,  and  part  of  16  &  17 
Vict.  c.  83,  s.  2.  (The  effect  of  this  repeal  is  given  in  article  109  ;  and 
see  Note  XLI.) 

S.  2.  Parties  competent  in  actions  for  breach  of  promise  of  mar- 
riage, but  must  be  corroborated.     (See  articles  106  and  121.) 

S.  3.  Husbands  and  wives  competent  in  proceedings  in  consequence 
of  adultery,  but  not  to  be  compelled  to  answer  certain  questions. 
(Article  109.) 

S.  4.  Atheists  rendered  competent   witnesses.      (Articles  106  and 

123) 

S.  5.   Short  title. 

S.  6.  Act  does  not  extend  to  Scotland. 


33  &  34  V^ict.  c.  49  (9th  August,  1870  ;  3  sections) : — 

S.  I.  Recites  doubts  as  to  meaning  of  "Court"  and  "Judge"  in  s. 
4  of  32  &  33  Vict.  c.  68,  and  defines  the  meaning  of  those  words. 
(The  effect  of  this  provision  is  given  in  the  definitions  of  "  Court"  and 
"Judge"  in  article  i,  and  in  s.  125.) 

S.  2.    Short  title, 

S.  3.  Act  does  not  extend  to  Scotland. 

These  are  the  only  Acts  which  deal  with  the  Law  of  Evidence  as  I 
have  defined  it.  It  will  be  observed  that  they  relate  to  three  subjects 
only — the  competency  of  witnesses,  the  proof  of  certain  classes  of 
documents,  and  certain  details  in  the  practice  of  examining  witnesses. 
These  details  are  provided  for  twice  over,  namely,  once  in  17  &  18 


284  ^  DIGEST  OF  [Notes. 

Vict.  c.  125,  ss.  22-27,  ^°*^^  inclusive,  which  concern  civil  proceedings 
only ;  and  again  in  28  Vict.  c.  18,  ss.  3-8,  vi^hich  re-enacts  these  pro- 
visions in  relation  to  proceedings  of  every  kind. 

Thus,  when  the  Statute  Law  upon  the  subject  of  Evidence  is  sifted 
and  put  in  its  proper  place  as  part  of  the  general  system,  it  appears  to 
occupy  a  very  subordinate  position  in  it.  The  ten  statutes  above  men- 
tioned are  the  only  ones  which  really  form  part  of  the  Law  of  Evidence, 
and  their  effect  is  fully  given  in  twenty  >  articles  of  the  Digest,  some  of 
which  contain  other  matter  besides. 

[NOTE  XLIX.] 

[The  following  are  the  original  Articles  36,  37,  and  38  of  Mr.  Stephen, 
transferred  from  the  body  of  the  work  :] 

Article  36.     entries  in  bankers'  books. 

A  copy  of  any  entry  in  a  banker's  book  must  in  all  legal  proceedings 
be  received  2^%  prima,  facie  evidence  of  such  entry,  and  of  the  matters, 
transactions,  and  accounts  therein  recorded  (even  in  favor  of  a  party 
to  a  cause  producing  a  copy  of  an  entry  in  the  book  of  his  own  bank.'^) 

Such  copies  may  be  given  in  evidence  only  on  the  condition  stated  in 
article  71  (/). 

The  expression  '  Bankers'  books '  includes  ledgers,  day-books,  cash 
books,  account  books,  and  all  other  books  used  in  the  ordinary  busi- 
ness of  the  bank. 

The  work  "Bank"  is  restricted  to  banks  which  have  duly  made  a 
return  to  the  Commissioners  of  Inland  Revenue, 

Savings  banks  certified  under  the  Act  relating  to  savings  banks,  and 

Post-office  savings  banks. 

The  fact  that  any  bank  has  duly  made  a  return  to  the  Commissioners 
of  Inland  Revenue  may  be  proved  in  any  legal  proceeding  by  the  pro- 
duction of  a  copy  of  its  return  verified  by  the  affidavit  of  a  partner  or 
officer  of  the  bank,  or  by  the  production  of  a  copy  of  a  newspaper  pur- 
porting to  contain  a  copy  of  such  return  published  by  the  Com- 
missioners of  Inland  Revenue. 


'  I,  49,  52,  58,  72,  79,  80,  81,  83,  84,  106,  108,  109,  120,  121,  123,  125,  131, 

132.  133- 
'i  Harding y.   Williams ^  L,  R.  14  Ch-  D.  197, 


Notes.]  THE  LA  W  OF  E  VIDENCE.  285 

The  fact  that  any  such  savings  bank  is  certified  under  the  Act  relat- 
ing to  savings  banks  may  be  proved  by  an  office  or  examined  copy  of 
its  certificate.  The  fact  that  any  such  bank  is  a  post-office  savings 
bank  may  be  proved  by  a  certificate  purporting  to  be  under  the  hand 
of  Her  Majesty's  Postmaster-General  or  one  of  the  secretaries  of  the 
Post  Office.' 

Article  37.     bankers  not  compellable  to  produce  their 

BOOKS. 

A  bank  or  officer  of  a  bank  is  not  in  any  legal  proceeding  to  which 
the  bank  is  not  a  party,  compellable  to  produce  any  banker's  book,  or 
to  appear  as  a  witness  to  prove  the  matters,  transactions,  and  accounts 
therein  recorded,  unless  by  order  of  a  Judge  of  the  High  Court  made 
for  special  cause  (or  by  a  County  Court  Judge  in  respect  of  actions  in 
his  own  court.)* 

Article  38.     judge's  powers  as  to  bankers'  books. 

On  the  application  of  any  party  to  a  legal  proceeding,  a  Court  or 
Judge  may  order  that  such  party  be  at  liberty  to  inspect  and  take  copies 
of  any  entries  in  a  banker's  book  for  any  of  the  purposes  of  such  pro- 
ceedings. Such  order  may  be  made  either  with  or  without  summoning 
the  bank,  or  any  other  party,  and  must  be  served  on  the  bank  three 
clear  days  (exclusive  of  Sundays  and  Bank  holidays)  before  it  is  to  be 
obeyed,  unless  the  Court  otherwise  directs. 

[Upon  this  subject  of  bankers'  books,  Mr.  Stephen  says  in  Art.  71  (_/") 
that  secondary  evidence  is  admissible,  "  when  the  document  is  an  entry 
in  a  banker's  book,  proof  of  whicli  is  admissible  under  article  36."  He 
also  adds  :  "In  case  (/")  the  copies  cannot  be  received  as  evidence  unless 
it  be  first  proved  that  the  book  in  which  the  entries  copied  were  made 
was  at  the  time  of  making  one  of  the  ordinary  books  of  the  bank,  and 
that  the  entry  was  made  in  the  usual  and  ordinary  course  of  business, 
and  that  the  book  is  in  the  custody  and  control  of  the  bank,  which 
proof  may  be  given  orally  or  by  affidavit  by  a  partner  or  officer  of  the 
bank,  and  that  the  copy  has  been  examined  with  the  original  entry  and 
is  correct,  which  proof  must  be  given  by  some  person  who  has  examined 

'  42  &  43  Vict  c.  3.  '  42  &  43  Vict.  c.  u. 


286  A  DIGEST  OF  [Notes. 

the  copy  with  the  original  entry,  and  may  be  given  orally  or  by  affidavit. 
42  &  43  Vict.  c.  II,  ss.  3,  5."] 

[NOTE  L.] 

[The  following  are  the  original  Articles  76,  80-84  of  Mr.  Stephen, 
transferred  from  the  body  of  the  work  :] 

Article  76.  general  records  of  the  realm. 
Any  record  under  the  charge  and  superintendence  of  the  Master  of 
the  Rolls  for  the  time  being,  may  be  proved  by  a  copy  certified  as  a- 
true  and  authentic  copy  by  the  deputy  keeper  of  the  records  or  one  of 
the  assistant  record  keepers,  and  purporting  to  be  sealed  or  stamped 
with  the  seal  of  the  Record  Office,     (i  &  2  Vict.  c.  94,  ss.  i,  12,  13.) 

Article  80.     documents  admissible  throughout  the  queen's 
dominions. 

If  by  any  law  in  force  for  the  time  being  any  document  is  admissi- 
ble in  evidence  of  any  particular  either  in  Courts  of  Justice  in  England 
and  Wales,  or  in  Courts  of  Justice  in  Ireland,  without  proof  of  the 
seal,  or  stamp,  or  signature  authenticating  the  same,  or  of  the  judicial 
or  official  character  of  the  person  appearing  to  have  signed  the  same, 
that  document  is  also  admissible  in  evidence  to  the  same  extent  and 
for  the  same  purpose,  without  such  proof  as  aforesaid,  in  any  Court 
or  before  any  judge  in  any  part  of  the  Queen's  dominions  except  Scot- 
land. > 

Article  81.     queen's  printers'  copies. 

The  contents  of  Acts  of  Parliament,  not  being  public  Acts,  may  be 
proved  by  copies  thereof  purporting  to  be  printed  by  the  Queen's 
printers ; 


'  Consolidates  14  &  15  Vict.  c.  99,  ss.  9,  10,  11,  19.  Sec.  9  provides 
that  documents  admissible  in  England  shall  be  admissible  in  Ireland  ; 
sec.  10  is  the  converse  of  9;  sec.  11  enacts  that  documents  admissible  in 
either  shall  be  admissible  in  the  "  British  Colonies  ;  "  and  sec.  19  defines 
the  British  Colonies  as  including  India,  the  Channel  Islands,  the  Isle  of 
Man,  and  "all  other  possessions"  of  the  British  Crown,  wheresoever 
and  whatsoever.  This  cannot  mean  to  include  Scotland,  though  the  lit- 
eral sense  of  the  words  would  perhaps  extend  to  it. 


Notes.] 


THE  LAW  OF  EVIDENCE. 


287 


The  journals  of  either  House  of  Parliament ;  and 

Royal  proclamations, 
may  be  proved  by  copies  thereof  purporting  to  be  printed  by  the  print- 
ers to  the  Crown  or  by  the  printers  to  either  House  of  Parliament. ' 

Article  82.  proof  of  irish  statutes. 
The  copy  of  the  statutes  of  the  kingdom  of  Ireland  enacted  by  the 
Parliament  of  the  same  prior  to  the  union  of  the  kingdoms  of  Great 
Britain  and  Ireland,  and  printed  and  published  by  the  printer  duly  au- 
thorized by  King  George  III.  or  any  of  his  predecessors,  is  conclusive 
evidence  of  the  contents  of  such  statutes.* 

Article  83.  proclamations,  orders  in  council,  etc. 
The  contents  of  any  proclamation,  order,  or  regulation  issued  at  any 
time  by  Her  Majesty  or  by  the  Privy  Council,  and  of  any  proclama- 
tion, order,  or  regulation  issued  at  any  time  by  or  under  the  authority 
of  any  such  department  of  the  Government  or  officer  as  is  mentioned 
in  the  first  column  of  the  note '  hereto,  may  be  proved  in  all  or  any  of 
the  modes  hereinafter  mentioned  ;  that  is  to  say — 


'  8  &  9  Vict.  c.  113,  s.  3.     Is  there  any  difference  between  the  Queen's 
printers  and  the  printers  to  the  Crown  ? 
■■'  41  Geo.  III.  c.  90,  s.  9. 
s  Column  i.  Column  2. 


Name  of  Department  or  Officer. 

The   Commissioners  of  the  Treas- 
ury. 

The  Commissioners   for  executing 
the  Office  of  Lord  High  Admiral. 


Secretaries  of  State. 

Committee    of    Privy   Council    for 
Trade. 


Names  of  Certifying  Officers. 

Any  Commissioner,  Secretary,  or 
Assistant  Secretary  of  the  Treas- 
ury. 

.\ny  of  the  Commissioners  for  exe- 
cuting the  Office  of  Lord  High 
Admiral  or  either  of  the  Secre- 
taries to  the  said  Commissioners. 

Any  Secretary  or  Under-Secretary 
of  State. 

Any  Member  of  the  Committee  of 
Privy  Council  for  Trade  or  any 
Secretary  or  Assistant  Secretary 
of  the  said  Committee. 


288  A  DIGEST  OF  [Notes. 

(i)  By  the  production  of  a  copy  of  the  Gazette  purporting  to  con- 
tain such  proclamation,  order,  or  regulation  : 

(2)  By  the  production  of  a  copy  of  such  proclamation,  order,  or 
regulation  purporting  to  be  printed  by  the  Government  printer,  or, 
where  the  question  arises  in  a  Court  in  any  British  colony  or  posses- 
sion, of  a  copy  purporting  to  be  printed  under  the  authority  of  the  leg- 
islature of  such  British  colony  or  possession  : 

(3)  By  the  production,  in  the  case  of  any  proclamation,  order,  or 
regulation  issued  by  Her  Majesty  or  by  the  Privy  Council,  of  a  copy 
or  extract  purporting  to  be  certified  to  be  true  by  the  Clerk  of  the  Privy 
Council  or  by  any  one  of  the  Lords  or  others  of  the  Privy  Council, 
and,  in  the  case  of  any  proclamation,  order,  or  regulation  issued  by  or 
under  the  authority  of  any  of  the  said  departments  or  officers,  by  the 
production  of  a  copy  or  extract  purporting  to  be  certified  to  be  true  by 
the  person  or  persons  specified  in  the  second  column  of  the  said  note 
in  connection  with  such  department  or  officer. 

Any  copy  or  extract  made  under  this  provision  may  be  in  print  or  in 
writing,  or  partly  in  print  and  partly  in  writing. 

No  proof  is  required  of  the  handwriting  or  official  position  of  any 
person  certifying,  in  pursuance  of  this  provision,  to  the  truth  of  any 
copy  of  or  extract  from  any  proclamation,  order,  or  regulation.' 

Subject  to  any  law  that  may  be  from  time  to  time  made  by  the  legis- 
lature of  any  British  colony  or  possession,  this  provision  is  in  force  in 
every  such  colony  and  possession.* 

Article  84. 
foreign  and  colonial  acts  of  state,  judgments,  etc. 
All  proclamations,  treaties,   and  other  acts  of  state  of  any  foreign 


The  Poor  Law  Board.  Any  Commissioner  of  the  Poor  Law 

Board  or  any   Secretary   or  As- 
sistant    Secretary     of    the     said 
Board. 
Any  Secretary  or  Assistant  Secre- 
tary of  the   Post  Office  {32  ^  34 
Vict,  c  79,  s.  21.) 
(Schedule  to  31  &  32  Vict.  c.  37.     See  also  34  &  35  Vict.  c.  70,  s.  5.) 
»  31  &  32  Vict.  c.  37,  s.  2.  ■■'  3id,  s.  3. 


The  Postmaster  General. 


Notes.]  THE  LAW  OF  EVIDENCE.  289 

state,  or  of  any  British  colony,  and  all  judgments,  decrees,  orders,  and 
other  judicial  proceedings  of  any  Court  of  Justice  in  any  foreign  state 
or  in  any  British  colony,  and  all  affidavits,  pleadings,  and  other  legal 
documents  filed  or  deposited  in  any  such  Court,  may  be  proved  either 
l)y  examined  copies  or  by  copies  authenticated  as  hereinafter  men- 
tioned ;  that  is  to  say — 

It  the  document  sought  to  be  proved  be  a  proclamation,  treaty,  or 
other  act  of  state,  the  authenticated  copy  to  be  admissible  in  evidence 
must  purport  to  be  sealed  with  the  seal  of  the  foreign  state  or  British 
possession  to  which  the  original  document  belongs  ; 

And  if  the  document  sought  to  be  proved  be  a  judgment,  decree, 
order,  or  other  judicial  proceeding  of  any  foreign  Court,  in  any  British 
possession,  or  an  affidavit,  pleading,  or  other  legal  document  filed  or 
deposited  in  any  sucli  Court,  the  authenticated  copy  to  be  admissible 
in  evidence  must  purport  either  to  be  sealed  with  the  seal  of  the  for- 
eign or  other  Court  to  which  the  original  document  belongs,  or,  in  the 
event  of  such  Court  having  no  seal,  to  be  signed  by  the  judge,  or,  if 
there  be  more  than  one  judge,  by  any  one  of  the  judges  of  the  said 
Court,  and  such  judge  must  attach  to  his  signature  a  statement  in 
writing  on  the  said  copy  that  the  court  whereof  he  is  a  judge  has  no 
seal  ; 

If  any  of  the  aforesaid  authenticated  copies  purports  to  be  sealed  or 
signed  as  hereinbefore  mentioned,  it  is  admissible  in  evidence  in  every 
case  in  which  the  original  document  could  have  been  received  in  evi- 
dence, without  any  proof  of  the  seal  where  a  seal  is  necessary,  or  of 
the  signature,  or  of  the  truth  of  the  statement  attached  thereto,  where 
such  signature  and  statement  are  necessary,  or  of  the  judicial  char- 
acter of  the  person  appearing  to  have  made  such  signature  and  state- 
ment.* 

Colonial  laws  assented  to  by  the  governors  of  colonies,  and  bills  re- 
served by  the  governors  of  such  colonies  for  the  signification  of  her 
Majesty's  pleasure,  and  the  fact  (as  the  case  may  be)  that  such  law 
has  been  duly  and  properly  passed  and  assented  to,  or  that  such  bill 
has  been  duly  and  properly  passed  and  presented  to  the  governor,  may 
be  proved  {prim A  facie)  by  a  copy  certified  by  the  clerk  or  other 
proper  officer  of  the  legislative  body  of  the  colony  to  be  a  true  copy  of 


1 14  &  15  Vict.  c.  99,  s.  7. 


290  THE  LAW  OF  EVIDENCE.  [Notes. 

any  such  law  or  bill.  Any  proclamation  purporting  to  be  published 
by  authority  of  the  governor  in  any  newspaper  in  the  colony  to  which 
such  law  or  bill  relates,  and  signifying  her  Majesty's  disallowance  of 
any  such  colonial  law,  or  her  Majesty's  assent  to  any  such  reserved 
bill,  \%  prima  facie  proof  of  such  disallowance  or  assent.' 


*  28  &  29  Vict.  0.  63,  s.  6.  "  Colony  "  in  this  paragraph  means  "  all  her 
Majesty's  possessions  abroad"  having  a  legislature,  "  except  the  Channel 
Islands,  the  Isle  of  Man,  and  India."  "  Colony  "  in  the  rest  of  the  article 
includes  those  places. 


INDEX. 


(The  numbers  refer  to  pages.) 

Abatement,  judgment  of,  not  a  bar,  87. 
Abortion,  dying  declarations  in  trials  for,  62. 
Abbreviations,  when  judicially  noticed,  123. 

explainable  by  parol  evidence,  167. 
Acceptor  of  bill  of  exchange,  estoppel  of,  191. 

Accession  of  President,  or  other  executive,  judicially  noticed,  120,  121. 
Accidental  or  intentional  acts,  distinguished  by  evidence  of  system,  33,  34, 
Accomplice,  testimony  of,  when  requiring  corroboration,  210,  211. 

nature  of  corroboration  needed,  211. 

apparent  accomplices  need  no  corroboration,  211. 
Account  rendered,  correctness  admitted  by  not  objecting,  40. 
Acquiescence,  effect  of  as  adm.ission,  19,  40. 

effect  of  as  confession  of  crime,  18,  52. 
Acts  of  Parliament,  recitals  in  as  evidence,  79,  80. 

when  public,  judicially  noticed,  118. 

not  public,  how  proved,  286. 
Acts  of  state,  proved  by  recitals  in  statutes,  etc.,  79,  80. 

proof  of,  150,  151. 

proof  of  foreign,  151,  152,  288. 
Administrator,  bound  by  admissions  of  intestate,  41. 

admissions  of,  42,  47. 

effect  of  appointing  upon  estate  of  living  person,  85. 

party  cannot  testify  against,  as  to  transactions  with  decedent,  193. 
Admiralty  Courts,  judicially  noticed,  121. 

effect  of  judgments  in,  condemning  ships  as  prize,  90,  91. 
Admissions  defined,  39. 

how  proved,  39. 

no  evidence  required  of  facts  admitted,  125. 
aliter,  in  trials  for  felony,  125. 

whole  of  admission  to  be  brought  out,  39,  255. 

who  may  make,  and  when,  40-44. 


292  INDEX. 

(The  numbers  refer  to  pages.) 

Admissions  {continued). 

implied  from  acts  and  conduct,  40. 

as  from  silent  acquiescence,  18,  19,  40. 

from  act  of  landlord  in  making  repairs,  40. 

entries  in  partnership  books  evidence  against  partner,  40. 

no  admission  implied  from  failure  to  answer  a  letter,  40. 
made  incidentally,  40. 

made  in  pleading  or  in  giving  former  evidence,  40. 
judgment  as  an  admission,  94,  96. 
oral  admission  received  with  caution,  40. 
when  conclusive,  40. 
of  a  nominal  party,  41. 

of  assignor  after  assignment,  against  assignee,  41. 
of  a  person  interested  in  the  event,  41. 

of  deputy-sheriff  as  against  sheriff,  41. 
of  privies  in  blood,  in  law,  or  in  estate,  41. 

of  intestate  competent  against  administrator,  41. 

of  testator  competent  against  executor,  41. 

of  husband  competent  against  widow  claiming  dower,  41. 

of  ancestor  competent  against  heir,  41. 

of  grantor  competent  against  grantee,  41,  42. 

of  landlord  competent  against  tenant,  42. 

of  devisor  competent  against  devisee,  42. 

of  assignor  of  chattels  competent  against  assignee,  43. 
aliter,  in  New  York  as  to  assignments  for  value,  43. 

declarations  of  landowner  showing  the  character  of  his  posses- 
sion, competent,  42. 
of  party  to  a  proceeding,  42. 
of  person  suing,  or  being  sued,  in  a  representative  character,  42. 

of  executor  or  administrator,  42. 
of  agents  and  persons  jointly  interested  with  parties,  45,  256. 
of  partners  or  joint-debtors  or  contractors,  45,  46,  49. 

effect  of  admissions  after  dissolution  of  partnership,  46. 

effect  of  upon  claims  barred  by  Statute  of  Limitations,  46, 
of  husband  and  wife,  45,  49. 
of  member  of  corporation,  45. 
of  attorneys  and  counsellors,  46,  47,  49. 
of  persons  having  a  common  interest,  47. 

of  executor  or  administrator,  as  against  co-executor  or  co-admin- 
istrator, heirs,  etc.,  47. 

of  one  tenant  in  common  as  against  another,  47. 


INDEX.  293 

(The  numbers  refer  to  pages.) 

Admissions  (continued). 

of  one  devisee  as  against  another,  47. 
of  defendants  in  tort  cases,  47. 
of  strangers,  50. 

of  judgment  debtor  as  against  sheriff,  50. 

of  banicrupt  as  against  assignee,  50. 
of  person  expressly  referred  to,  51. 
of  person  interested  or  privy  must  be  made  while  interest  continues, 

43- 
of  grantor  after  parting  with  possession  not  competent  against 

grantee,  43. 
so  of  assignor  of  chattels  or  choses  in  action,  43. 
effect  of  when  made  "  without  prejudice  "  or  in  offers  of  compromise, 

SI.  52. 

of  contents  of  document,  effect  of,  128. 

of  execution  of  document,  effect  of,  132. 

of  loss  of  document,  136. 

of  existence  of  marriage,  iii. 

burden  of  proof  to  show  admission,  181. 
Adukery,  in  trials  for,  woman's  bad  character  for  chastity  provable,  236. 

evidence  of  similar  acts  competent  to  show  disposition,  31. 

marriage  not  provable  by  cohabitation  and  repute,  iii. 

competency  of  husband  and  wife  as  witnesses  in  proceedings  for,  196, 
197. 
Affairs  of  State,  privilege  of  witness  concerning,  200. 
Affidavits,  when  admissible  as  evidence,  216,  219. 

statements  on  information  and  belief,  when  permissible  in,  218. 

costs  of  affidavit  containing  improper  matter,  by  whom  payable,  218, 
219. 

objections  to,  when  to  be  made,  219,  220. 
Affirmation,  when  made  by  witness  instead  of  taking  an  oath,  214,  215. 
Age,  a  matter  of  pedigree,  74. 

evidence  of  opinion  concerning,  loi. 
Agency,  Agent.     (See  Principal  and  Agent.) 
Alibi,  defence  of,  6,  247. 

what  proof  required  of,  179. 

burden  of  proof,  on  whom,  181. 
Alien,  effect  of  judgment  naturalizing,  85. 
Almanac,  as  evidence,  83,  125. 
Alteration  of  documents,  presumption  as  to,  157. 

material  alteration  by  party  avoids  instrument,  157. 


294  INDEX. 

(The  numbers  refer  to  pages.) 

Alteration  {continued). 

if  alteration  innocent,  recovery  may  be  had  on  original  consideration, 

157- 
aliter,  if  alteration  be  fraudulent,  157. 
by  mutual  consent,  does  not  avoid,  157. 
by  a  stranger,  effect  of,  157. 

called  a  "spoliation,"  158. 
of  deed,  may  avoid  covenants,  but  does  not  divest  title,  157. 
of  deeds  and  other  documents,  when  presumed  to  be  made,  158,  159. 
question  as  to  time  of  making  and  by  whom,  etc.,  generally  for  jury,  158. 
of  will,  when  presumed  to  be  made,  159. 
what  are  material  alterations,  and  what  immaterial,  159,  160. 
materiality  a  question  for  the  court,  160. 
immaterial  alterations  do  not  avoid,  160. 
filling  blanks  in  documents,  effect  of,  160. 
Ambiguity  m  documents,  parol  evidence  to  explain,  167,  169. 
patent  ambiguity,  167. 
latent  ambiguity,  169. 
Ancestor,  admissions  of  bind  heir,  41. 
Ancient  deeds  and  wills,  competency  of  as  evidence,  72. 

presumption  as  to,  156. 
Ancient  lights,  doctrine  of,  rejected  in  this  country,  186. 
Animals,  evidence  to  show  scienter,  30. 
Arbitrators,  competency  of  as  witnesses,  199. 
Arson,  proof  of  required  as  a  defence  in  insurance  cases,  176. 
Art,  matters  of,  provable  by  opinion  evidence,  103. 
Assault  and  battery,  evidence  of  character  irrelevant  in  trials  for,  115. 
indecent,  woman's  bad  character  for  chastity  relevant,  116. 

evidence  of  her  connection  with  other  men,  competency  of,  236. 
Assignor  and  assignee  of  personal  property,  admissions  of     (See  Admis- 
sions.) 
Atheists,  competency  of,  as  witnesses,  195. 

L  dying  declarations  of,  61,  237. 
Attachment  suits,  effect  of  judgments  in,  90,  100. 

Attested  documents,  proof  of  execution  of,  130-134,  156,  264.     (See  Doc- 
ument.) 
Attesting  witness.     (See  Subscribing  Witness. ) 
Attorney,  admissions  by,  46,  47,  49. 

status  and  signature  of,  judicially  noticed,  119. 

not  producing  client's  document  on  notice,  secondary  evidence  ad- 
missible, 136. 


INDEX.  295 

(The  numbers  refer  to  pages. ) 
Attorney  {continued). 

must  prove  good  faith  as  to  gift  from  chent,  179. 
competency  of.  as  witness  in  suit  in  which  he  is  attorney,  199. 
privileged  from  testifying  as   to  professional   communications  from 
client,  202-205. 
clerks  and  interpreters  also  privileged,  203,  204. 
but  not  a  law  student,  not  being  clerk,  204. 
nor  a  lawyer  acting  merely  as  conveyancer,  204. 
nor  officers  of  a  corporation,  204. 

privilege  does  not  cover  communications  to  effect  a  crime,  203. 
nor  knowledge  which  attorney  acquires  by  his  own  observation, 

203,  205. 
nor  facts  which  he  learns  otherwise  than  as  legal  adviser,  203. 
nor  communications  not  of  a  private  nature,  204. 
nor  facts  of  a  collateral  nature,  203,  204. 

communications  made  while  all  parties  are  present,  not  privi- 
leged in  suits  between  themselves,  204. 
client  privileged  from  testifying  as  to  communications   to  attor- 
ney, 205. 
attorney  only  compellable    to  produce  documents  which  client 

could  be  compelled  to  produce,  208. 
documents   amounting   to   professional    communications,   privi- 
leged, 202,  208. 
Auditors,  competency  of,  as  witnesses,  199. 
power  of,  to  take  testimony,  217. 

Bad  faith,  provable  by  similar  acts  or  declarations,  28. 
Bailee,  estopped  to  deny  bailor's  title,  191. 

but  may  show  delivery  of  goods  by  him  to  real  owner,  191. 
Bankers"  books,  competency  of  entries  in,  83,  284. 

what  are  such  books,  284. 

bankers  not  compellable  to  produce,  285. 

judge's  powers  as  to,  285. 

entries  in,  how  proved,  285. 
Bankrupt,  admissions  of,  50. 
Barrister,  admissions  by,  46,  47. 

competency  of,  as  witness,  199. 

privilege  as  to  professional  communications,  202-205.     (See  Attor- 
ney.) 
Bastardy  proceedings,  marriage  provable  by  cohabitation  and  repute, 
III. 


296  INDEX. 

(The  numbers  refer  to  pages.) 

Bastardy  proceedings  (continued). 

corroboration  of  mother's  evidence,  when  required,  210,  211. 

paternity,  when  provable  by  woman's  evidence,  184,  236. 

when  mother  may  be  cross-examined  as  to  connection  with  other 
men,  236. 
Belief,  when  witness  may  testify  to  his,  127. 

Bentham,  influence  of,  in  reforming  law  of  evidence,  x.,  xii. ,  xix. 
Bias,  witness  may  be  cross-examined  as  to  facts  showing,  226. 

may  be  contradicted  if  he  denies  such  facts,  228. 
Bigamy,  in  trials  for,  marriage  not  provable  by  cohabitation  and  repute, 

III. 
Bill  of  exchange,  admissions  of  holder  of,  43. 

indorsement  of  payment  on,  effect  of,  as  evidence,  67,  68. 

estoppel  of  acceptor,  191. 
Bill  of  lading,  receipt  in  open  to  explanation,  192. 

shipmaster  signing,  when  estopped  to  deny  shipment,  192. 
Bill  of  sale,  shown  by  parol  evidence  to  be  a  mortgage,  162. 
Birth,  as  matter  of  pedigree,  73. 
Blanks  in  documents,  effect  of  filling,  160. 
Bodily  feelings,  expressions  of,  provable,  32. 
Bond,  indorsement  of  payment  on,  effect  of,  as  evidence,  67,  68. 
Book  entries,  in  partnership  books  evidence  against  partner,  40. 

made  in  course  of  business,  admissibility  of,  63-66. 
books  of  original  entry  only  admissible,  65. 
effect  of  transcribing  charges,  65. 

made  by  party  himself,  competency  of,  64. 

in  public  books  and  records,  relevancy  of,  80. 

in  corporation  books,  81. 

in  bank-books,  83,  284,  285. 
Books,  medical,  scientific,  etc.,  as  evidence,  82,  83.     (See  Book  entries.) 

price  current  lists,  annuity  tables,  almanac,  gazetteer,  etc.,  83. 

reading  books  to  jury,  82,  83. 
Boundaries  of  estates,  declarations  concerning,  72. 

of  public  highways,  etc. ,  -j^- 
Breach  of  promise  of  marriage,  woman's  bad  character  for  chastity  prov- 
able, 116. 

corroboration  of  plaintiffs  evidence,  when  required,  210,  211. 
Burden  of  proof : 

rests  on  person  asserting  or  denying  a  state  of  facts,  175. 

general  burden  on  party  against  whom,  in  the  absence  of  evidence, 
judgment  would  be  given,  177. 


INDEX.  2^7 

(The  numbers  refer  to  pages.) 

Burden  of  proof  {continued). 

or  upon  party  against  whom  pleadings  raise  a  presumption,  177. 
is  on  plaintiff  when  his  cause  of  action  is  denied,  177. 

even  though  his  cause  of  action  involves  negative  averments, 
177. 
as  in  an  action  for  malicious  prosecution,  179. 
is  on  defendant  when  he  admits  cause  of  action  and  sets  up  af- 
firmative defence,  177. 
party  having  burden  has  right  to  open  and  close  the  case,  178. 
burden  remains  on  him  throughout  the  trial,  178. 

in  criminal  cases  rests  on  the  government,  178. 
meaning  of  "  shifting  of  the  burden,"  178. 
party  having  burden  must  prove  all  material  allegations,  178. 
may  sometimes  make  out  prima  /acie  case  by  showing  mere 
occurrence  of  injury,  178. 
burden  of  proof  in  criminal  case,  when  defence  of  insanity  is 

made,  179. 
how  affected  by  presumption  from  the  recent  possession  of  stolen 
goods,  178. 
or  in  case  of  gift  by  client  to  solicitor,  179. 
or  by  presumption  of  innocence  as  conflicting  with  the  pre- 
sumption of  continuance  of  life,  177. 
in  trials  for  crime,  proof  of  guilt  required  beyond  reasonable  doubt, 

17s.  179- 
in  civil  actions,  only  preponderance  of  evidence  required,  175. 
aliter,  in  some  Civil  actions  involving  a  charge  of  crime,  176. 
as  in  libel  and  slander  cases  in  some  States,  176. 
in  insurance  cases  involving  charge  of  arson,  only  preponder- 
ance required  in  this  country,  176. 
aliter,  in  England,  176. 
as  to  particular  fact,  180. 

defendant  must  prove  grounds  of  defence,  180. 

as  the  defence  of  insanity  or  alibi  in  criminal  cases,  179,  181. 
extent  of  proof  required,  179. 
in  negligence  suits,  plaintiff  proves  defendant's  negligence,  and 
defendant  that  of  plaintiff,  181. 
but  in  some  States  plaintiff  must  prove  his  own  freedom  from 
negligence,  181. 
one  party  must  prove  the  other's  admissions,  181. 
burden  on  person  having  special  opportunities  of  knowledge,  180. 
181. 


298  INDEX. 

(The  numbers  refer  to  pages.) 

Burden  of  proof  {continued). 

person  charged  with  acting  without  legal  license  must  prove 
that  he  has  one,  181. 
burden  on  party  introducing  evidence  to  prove  preliminary  facts 
on  which  its  admission  depends,  182. 
Business,  course  of.     (See  Course  of  Business.) 
usages  of.     (See  Custom.) 

Cabinet  officers,  status  of,  judicially  noticed,  119. 

Carefulness,  habit  of,  not  provable  to  show  care  on  a  particular  occasion, 

34- 
whether  system  or  course  of  business  may  be  shown  to  prove  careful- 
ness, 33,  34. 
Cause  of  action,  not  to  be  split,  86,  89. 

burden  of  proof  to  establish.     (See  Burden  of  Proof.) 
Certificates,  as  evidence,  145. 

Certified  copy  of  document,  as  evidence,  145,  146. 
Chancery,  discovery  in.     (See  Discovery.) 

corroborative  evidence  in  chancery  suits.     (See  Witness.) 
examiners  in  U.  S.  courts  cannot  pass   on  objections  to  testimony, 
218. 
Character,  evidence  of,  generally  irrelevant,  xiii. ,  113. 
good  or  bad,  in  criminal  cases,  when  relevant,  6,  113. 

in  trials  for  rape,  adultery,  etc.,  woman's  bad  character  for  chas- 
tity provable,  235,  236. 
character  for  quarrelsomeness,  when  provable,  14. 
means  reputation  as  distinguished  from  disposition,  114,  116,  262. 
in  civil  cases,  generally  irrelevant,  114,  115. 
as  in  actions  for  assault  and  battery,  115. 
or  upon  a  promissory  note,  115. 
or  for  negligence,  115. 
or  where  fraud  is  charged,  115. 
in  some  civil  actions,  relevant,  115. 

as  in  actions  for  libel  or  slander,  115. 
or  for  malicious  prosecution,  115. 
or  for  criminal  conversation,  seduction,  etc.,  I16. 
of  witness,  when  and  how  provable.     (See  Witness.) 
Charter  of  corporation,  when  judicially  noticed,  117. 
Charts,  statements  in,  when  relevant,  81,  82. 
Chattels,  value  of,  how  provable,  102. 
Chattel  mortgage,  bill  of  sale  shown  to  be  by  parol  evidence,  163, 


INDEX.  299 

(The  numbers  refer  to  pages. ) 

Children,  dying  declarations  of,  61. 

competency  of  as  witnesses,  194. 
Circumstantial  evidence,  proof  of  conspiracy  by,  11. 

illustrations  of,  15,  16,  21,  22,  247. 
Civil  divisions  of  State,  judicially  noticed,  122. 

also  their  relative  positions,  122. 
Clergymen,  privilege  of  as  to  confidential  communications,  205,  275. 
Clerks,  of  court,  judicially  noticed,  119. 

of  lawyers,   privileged    from    disclosing   professional    communica- 
tions, 204. 
Cohabitation  and  repute,  as  evidence  of  marriage,  ill. 
Colonial  acts  of  state,  proof  of  in  English  courts,  288. 
Commissioners,  power  of  to  take  testimony,  217. 
Commissions  to  take  depositions.     (See  Deposition.) 
Common  law,  of  forum  judicially  noticed,  117. 

of  other  States  and  countries,  how  provable,  103,  104. 
Communications  during  marriage,  privileged,  196-198. 

of  client  to  legal  adviser,  privileged,  202-205.     (See  Attorney.) 

to  clergymen  and  physicians,  when  privileged,  205,  206,  275. 
Comparison  of  handwritings.     (See  Opinion,  Evidence  of.) 
Competency  of  witnesses.     (See  Witness.) 
Complaints  in  cases  of  rape,  evidence  of,  17,  19,  251. 

particulars  of  complaint  not  generally  provable,  17,  19,  251. 
Compromise,  effect  of  offers  of,  as  admissions,  51,  52. 
Conclusions  of  law,  witness  cannot  testify  to,  127. 
Conclusive  proof,  definition  of,  4,  246. 

Conditions  in  documents,  when  provable  by  parol  evidence,  163. 
Conduct  after  an  act,  effect  of  as  evidence,  14,  15,  16. 

statements  affecting  conduct  provable,  18. 
Confessions,  defined,  52. 

how  different  from  admissions,  52. 

by  silent  acquiescence,  18,  52. 

caused  by  inducement,  threat,  or  promise,  effect  of,  52,  57. 

extrajudicial  must  be  corroborated  by  proof  ai  corpus  delicti,  53, 
aliter,  as  to  judicial  confession,  58. 

whole  confession  to  be  brought  out,  53, 

pf  one  of  several  defendants,  effect  of,  10,  53. 

admissibility  of  determined  by  judge,  54. 

when  voluntary  and  when  involuntary,  54. 

effect  of  when  made  to  person  in  authority,  53-55, 
to  person  ngt  in  authority,  55. 


300  INDEX. 

(The  numbers  refer  to  pages.) 

Confessions  {continued.) 

who  is  person  in  authority,  56. 
by  prisoner  in  custody,  55. 

effect  of  when  made  after  impression  of  hope  or  fear  is  removed,  56. 
facts  discovered  by  means  of  involuntary  confessions,  when  prov- 
able, 56. 
effect  of  when  made  under  oath,  57,  58,  209. 
or  under  promise  of  secrecy,  59. 
or  when  obtained  by  deception,  59. 
when  made  by  drunken  person,  59. 
or  when  made  in  answer  to  questions,  59. 

or    when    made    without    warning    being    given    of  the  conse- 
quences, 59. 
Congress,  acts  of  judicially  noticed  in  State  courts,  118. 
Consideration  of  document,  provable  by  parol,  162. 

want  of,  also  so  provable,  162. 
Conspirators,  acts  and  declarations  of,  when  relevant,  10. 
confessions  of,  10,  53. 
proof  of  conspiracy,  11. 
Construction   of    documents.     (See    Interpretation    and    Construction, 

etc.) 
Contract,  written,  how  far  modifiable  by  parol  evidence,  162-165.     (See 

Oral  Evidence.) 
Contradiction  of  witness,  when  allowed.     (See  Witness.) 
Conveyancers,  privilege  of  as  to  professional  communications,  204. 
Conviction  for  crime,  as  affecting  competency  of  witness.     (See  Infa- 
mous Persons.) 
Copy  of  document,  sometimes  primary  evidence,  128. 
usually  secondary  evidence,  135. 
as  e.xemplifications,  135,  144. 
examined  copies,  135,  143. 
office  copies,  135,  144,  145. 
certified  copies,  135,  145,  146. 
counterparts,  135,  139. 

these  are  sometimes  primary  evidence,  128, 
Jetter-press  copies,  129. 
photographic  copies,  129. 
admissibility  of  copies  to  show  handwriting,  no,  iii. 
Corporation,  admissions  of  member,  when  competent  against,  45, 
books  of  as  evidence,  81. 
may  be  served  with  subpcena  duces  (((unty  i-^o,  208, 


INDEX.  301 

(The  numbers  refer  to  pages.) 

Corporation  {continued). 

agent  of,  whether  compellable  to  produce  corporate  books  in  evi- 
dence, 140,  208. 

charter  of,  when  judicially  noticed,  117. 
Corpus  delicti,  when  confessions  must  be  corroborated  by  proof  of,  53. 
Corroboration,  of  confessions  by  proof  of  f<7/-/«.f  delicti,  53. 

of  ancient  documents,  156. 

of  witnesses,  when  required.     (See  Witness.) 
Costs  of  affidavit  containing  improper  matter,  by  whom  payable,  219. 
Counsellor.     (See  Attorney  ;  Barrister.) 

Counterfeit  money,  uttering  of,  similar  acts  to  show  knowledge,  29. 
Counterparts,  which  primary,  and  which  secondary  evidence,  128,  135, 

139- 
County,  population  of,  judicially  noticed,  122. 

so  of  county  officers,  120. 
Course  of  business,  provable  to  show  particular  act  within  it,  35-37. 

presumed  to  be  followed,  187. 

when  provable,  to  show  care  or  negligence  in  doing  particular  act, 

2■i^  34- 
declarations  made  in,  63-66.     (See  Book  Entries.) 
Courts,  rules,  records,  officers,  and  terms  of,  judicially  noticed,  iig,  120. 
seals  of,  when  judicially  noticed,  121. 
existence  of,  when  noticed  by  other  courts,  119. 
of  admiralty  jurisdiction,  judicially  noticed,  121. 
of  States,  notice  acts  of  Congress,  118. 
of  U.  S.,  notice  State  laws,  118. 
Credit,  of  witness,  impeaching.     (See  Witness.) 
Crime,  burden  of  proof  in  trials  for.     (See  Burden  of  Proof) 

one  crime  not  provable  by  evidence  that  accused  committed  another, 
24.  25. 
aliter,  when  one  forms  the  motive  or  preparation  for  the  other, 
or  they  are  parts  of  a  general  scheme,  etc.,  25,  34,  35. 
must  be  proved  beyond  reasonable  doubt,  175. 

evidence  of  character  in  trials  for,  when  relevant,  113.     (See  Char- 
acter.) 
conviction  for  crime,  disqualifies  witness,  when.     (See  Infamous  Per- 
sons.) 
competency  of  defendant  as  witness,  195. 

of  husband  or  wife  of  defendant,  195. 
preliminary  examination  of  prisoner  before  committing  magistrate, 
8i6.     (See  Confession ;  Dying  Declarations,  etc.) 


302  INDEX. 

(The  numbers  refer  to  pages.) 

Crimen  falsi,  defined,  195. 

Criminal  conversation,  in  actions  for,  woman's  unchaste  reputation  prov- 
able, 116. 
marriage  not  provable  by  cohabitation  and  repute,  iii. 
Criminating  documents  or  evidence,  witness  not  compellable  to  produce 

or  give,  207,  209.     (See  Witness.) 
Cross-examination,  of  witness.     (See  Witness. ) 
of  party  in  criminal  cases,  209. 
of  party  in  civil  cases,  226. 
Custom,  evidence  of  facts  showing,  13. 

provable  by  parol  evidence  to  affect  writing,  164. 

provable  by  one  witness,  13,  213. 
public  or  general,  declarations  concerning,  71-73. 
of  business,  judicially  noticed,  118. 

Damages,  evidence  of  opinion  concerning,  not  relevant,  102. 

aliter,  as  to  value  of  property,  services,  etc.,  102. 

and  in  cases  of  taking  by  eminent  domain,  102. 
Date  of  document,  presumption  as  to,  153. 

true  date  may  be  proved  by  parol,  162. 
Deaf  and  dumb  persons,  competency  of  as  witnesses,  194,  195. 
Death,  as  matter  of  pedigree,  'jj,,  74,  76. 

presumption  of  from  seven  years'  absence,  184. 

order  of  death  when  several  persons  perish  in  same  calamity,  how 
established,  185. 

of  witness  before  his  examination  is  concluded,  effect  of,  221. 
Deceased  persons,  relevancy  of  their  declarations,  59-78.     (See  Declara- 
tions.) 
Declarations,  provable  when  part  of  the  res  gesta.     (See  Res  Gestee.) 

of  conspirators,  when  provable,  10. 

in  presence  of  a  person,  when  provable,  18. 

concerning  domicil,  18,  19. 

as  to  bodily  and  mental  feelings,  provable,  32. 

of  deceased  attesting  witness,  irrelevant,  38. 

amounting  to  admissions.     (See  Admissions.) 

of  owner  of  land  characterizing  his  possession,  42. 

amounting  to  confessions.     (See  Confessions.) 

by  persons  since  deceased,  59-78. 

dying  declarations,  60-62.     (See  Dying  Declarations.) 
Hiade  in  course  of  business  or  professional  duty.     (See  Course  of 
Business.) 


INDEX.  303 

(The  numbers  refer  to  pages.) 

Declarations  {continued). 

declarations  against  interest,  66-70. 

nature  of  the  interest  required,  66,  68. 

whole  of  declaration  relevant,  though  it  contains  matter  of 

charge  and  discharge,  67. 
effect  of  declarant's  having  a  limited  interest  in  property,  67. 
effect  of  indorsement  of  payment  on  bond,  bill,  note,  etc., 
67,  68. 
by  testators  as  to  contents  of  will,  70,  71. 
as  to  public  and  general  rights,  71-73.  ' 

must  be  made  anle  litam  motam,  75. 
as  to  pedigree,  73-76.     (See  Pedigree.)  < 

of  deceased  persons,  how  impeachable,  236.  ; 

Decree  of  court,  as  evidence  of  public  and  general  rights,  73.  \ 

of  executive,  judicially  noticed,  121.  .1 

Deed,  as  evidence  of  public  and  general  rights,  73.  '. 

presumptions  as  to  sealing  and  delivery  of,  154.     (See  Seal.)  1 

proof  of  execution  of,  133,  134. 

ancient,  presumption  as  to,  156.  • 

effect  of  alteration  of,  157-159.     (See  Alteration.) 

when  provable  by  parol  evidence  to  be  a  mortgage,  162.  1 

production  of  by  witness,  whether  compellable,  206-208.  \ 

Definitions,  general,  3.  ' 

Demand,  provable  orally,  though  made  in  writing,  138. 
Depositions,  may  be  taken  under  a  commission,  216. 

methods  prescribed  by  commission  must  be  followed,  218. 
commissioners,  how  enabled  to  obtain  evidence,  217.  j 

when  taken  under  letters  rogatory,  217.  ] 

objections  to,  what  may  be  made  and  when,  219,  236,  237.  \ 

motion  to  suppress,  219.  ; 

before  magistrates  in  England,  241.  ,\ 

under  30  &  31  Vict.  c.  35,  s.  6,  242.  ' 

under  Merchant  Shipping  Act,  1854  (England),  243,  244.  C 

Deputy-sheriff,  admissions  of,  when  competent  against  sheriff,  41.  . 

Detectives,  testimony  of  does  not  require  corroboration,  211.  ^ 

Devisee,  admissions  of  do  not  bind  another  devisee,  47.  \ 

Devisor,  admissions  of  bind  devisee,  42. 
Discontinuance,  judgment  of  not  a  bar,  87. 
Discovery,  of  title-deeds  and  other  papers  by  party,  when  required,  206- 

208. 
Dismissal  of  complaint,  judgment  of  not  a  bar,  86.  \ 


304  INDEX. 

(The  numbers  refer  to  pages.) 

Divorce,  effect  of  judgment  granting,  85. 

corroboration  of  complainant's  evidence,  when  required,  211. 
power  of  court  to  order  physical  examination  in  suits  for,  128. 
Document,  definition  of,  3. 

evidence  to  show  genuineness  of,  relevant,  20. 
documentary  evidence  defined,  xiv. ,  3. 
proof  of  contents  of,  127-152. 

must  generally  be  proved  by  primary  evidence,  129. 
what  constitutes  primary  evidence,  xiv.,  127. 
in  case  of  duplicates,  128,  139. 
in  case  of  counterparts,  128,  139. 

in  case  of  lithographed  or  photographed  documents,  129. 
in  case  of  telegrams,  129. 
contents  provable  by  admissions,  128. 
provable  by  secondary  evidence  in  many  cases,  135-139. 
what  constitutes  secondary  evidence,  xiv.,  135. 

exemplifications,  examined  copies,  office  copies,  certified 

copies,  135. 
other  copies,  135. 
counterparts  in  some  cases,  135. 
oral  testimony  of  contents,  135. 
when  secondary  evidence  may  be  given,  135-139. 

when  opponent  does  not  produce  document  on  notice, 

136. 
when  stranger,  having  privilege,  does  not  produce  on 

subpoena,  136. 
when  document  is  destroyed  or  lost,  136. 

how  loss  provable,  136,  182. 
when  original  is  not  easily  movable,  or  is  out  of  jurisdic- 
tion, 137. 
when  original  is  public  document,  137. 
when  party  has  been  deprived  of  original  by  fraud,  137. 
when  mode  of  proof  is  authorized  by  statute,  137. 
when    originals  are  numerous  documents,  not  conven- 
iently examinable  in  court,  137,  139. 
in  case  of  collateral  writings,  138. 

(For  other  cases,  see  Notice  to    Produce   Documents  ; 
Public  Documents.) 
rule  as  to  there  being  degrees  of  secondary  evidence,  138. 
attested,  proof  of  execution  of,  130-134,  264. 

proof  by  handwriting  when  witness  is  unprocurable,  130. 


INDEX.  •  30$ 

(The  numbers  refer  to  pages.) 

Document  (^continued). 

when  instrument  is  destroyed,  or  the  party  will  testify  to  execu- 
tion, 132. 
in  case  of  wills,  131. 

when  party  has  admitted  execution,  132. 
cases  in  which  attesting  witness  need  not  be  called,  132. 
when  document  is  not  produced  on  notice  given,  133. 
when  opponent  produces  it  and  claims  interest  under  it,  133. 
when  opponent  is  public  officer,  bound  to  procure  the  exe- 
cution, 133. 
when  document  is  recorded  deed,  etc.,  133,  134. 
when  document  is  ancient,  156. 
proof  when  attesting  witness  denies  the  execution,  134. 
unattested,  proof  of  execution  of,  134. 
presumptions  as  to,  153-160.     (See  Presumptions.) 
modification  of  by  oral  evidence,  161-167.     (See  Oral  Evidence.) 
interpretation  of,  167-174.     (See  Interpretation  and  Construction.) 
production  of  by  witness,   when  compellable,    140,   207,  208.     (See 

Subpoena  duces  tecum  ;  Witness;  Attorney.) 
criminating,  witness  not  compellable  to  produce,  207. 
admissible  throughout  the  Queen's  dominions,  how  proved,  286. 
Dogs,  injuries  by,  evidence  to  show  scienter^  30. 
Domicil,  evidence  of  declarations  concerning,  18,  19. 

of  infant,  how  provable,  21. 
Drunkenness,  effect  of  upon  the  competency  of  a  witness,  194. 

upon  the  admissibility  of  confessions,  59. 
Duplicate  documents,  each  is  primary  evidence,  128,  139. 

one  admissible  in  evidence  without  notice  to  produce  the  other,  141, 
Duress,  effect  of  admissions  under,  52. 
effect  of  confessions  under,  54,  55. 

may  be  shown  by  parol  to  avoid  written  instrument,  162. 
Dying  declarations,  60-62. 

only  competent  in  trials  for  homicide,  60. 

not  competent  in  cases  of  abortion,  unless  the  trial  be  for  homicide 

caused  thereby,  62. 
must  relate  to  cause  of  death,  etc. ,  60. 

not  competent  evidence  of  prior  or  subsequent  occurrences,  60. 
must  state  facts,  not  opinions,  60. 

competent,  though  obtained  by  leading  questions,  solicitation,  etc. ,  60. 
may  be  expressed  by  signs,  60. 
not  excluded  by  constitutional  provision,  60. 


3o6  INDEX. 

(The  numbers  refer  to  pages.) 

Dying  declarations  (coutimted). 

declarant  must  be  under  sense  of  impending  death,  6i. 

how  this  may  be  shown,  6i. 

effect  of  hope  existing,  6i. 

sense  of  impending  death  equivalent  to  an  oath,  6i. 

declarant  must  be  competent  to  take  an  oath,  6i. 
declarant  need  not  die  immediately,  6i. 
effect  of  making  the  declaration  in  writing,  as  a  deposition,  etc.,  6i, 

62. 
how  oral  declarations  may  be  proved,  62. 
burden  of  proof  to  render  declarations  admissible,  182. 
declarations  impeachable,  as  if  declarant  were  a  living  witness,  236. 

as  by  proving  him  to  be  an  atheist,  237. 

Election,  days  of,  judicially  noticed,  121. 

Eminent   domain,  opinion-evidence   competent  as  to  value  of  land  not 

taken,  102. 
Entries  in  books.     (See  Book-entries  ;  Books;  Bankers' Books. ) 
Equity.     (See  Chancery.) 

Equivocation,  parol  evidence  to  explain,  169.     (See  Oral  Evidence.) 
Escape,  of  person  charged  with  crime,  provable,  16. 
Estoppel,  by  judgment.     (See  Judgment.) 

by  conduct,  xvi.,  xvii. ,  188,  189. 

elements  of  estoppel  in  pais,  188,  189. 

of  tenant  to  deny  landlord's  title,  190. 

of  licensee  to  deny  licensor's  title,  190,  191. 

of  acceptor  of  bill  of  exchange,  191. 

of  bailee  to  deny  bailor's  title,  191. 

of  agent  to  deny  principal's  title,  191. 

of  shipmaster  signing  bill  of  lading  to  deny  the  shipment,  192. 
Evidence,  definition  of,  3. 

laws  of,  defined,  xii. 

oral,  3,  126.     (See  Oral  Evidence.) 

documentary,  3,  127-160.     (See  Document.) 

presumptive,  4,  246.     (See  Presumption.) 

of  facts  in  issue  and  relevant  facts,  xiii. ,  5. 

relevancy  of,  and  the  different  kinds  of  relevant  evidence.  (See  Rel- 
evancy ;  Res  gestcF ;  Conspirators;  Title;  Custom;  Char- 
acter ;  Opinion  ;  Hearsay  ;  Admissions  ;  Confessions  ;  Dec- 
larations ;   Document  ;  Judgment,  etc.) 

circumstantial,  illustrations  of,  15,  16,  21,  22,  247. 


INDEX.  307 

(The  numbers  refer  to  pages.) 

Evidence  {continued). 

improper  admission  of,  not  a  ground  for  a  new  trial,  unless  it  occa- 
sion substantial  injury,  245. 
offensive  to  public  morals,  received  when  relevant,  249. 
in  former  proceeding,  when  relevant,  76-79. 

grounds  of  its  admission  in  civil  cases,  77,  78. 
"  "  "  in  criminal  cases,  79. 

how  such  evidence  may  be  proved,  78. 
such  evidence  not  excluded  by  constitution,  77. 
evidence  given  by  party,  when  relevant,  78. 
E.xaniination,  of  witnesses.     (See  Witness.) 

of  prisoner  before  committing  magistrate  in  criminal  cases,  216. 
of  parties  before  trial  in  civil  cases,  216. 

not  allowed  in  actions  at  law  in  U.  S.  courts,  216. 
of  person  by  physicians,  power  of  court  to  order,  128. 
Examined  copy,  defined,  143. 

is  secondary  evidence,  135. 
Examiners,  power  of,  to  take  evidence,  217. 

when  without  power  to  pass  on  objections  to  evidence,  218. 
Execution  of  documents,  proof  of     (See  Document.) 
Executive,  accession  of,  judicially  noticed,  120,  121. 
Executor,  bound  by  admissions  of  testator,  41. 
admissions  of,  42,  47. 
effect  of  judgment  appointing,  85. 
party  to  suit  cannot  testify  against,  as  to  transactions  with  decedent, 

193- 
Exemplification,  defined,  144. 

is  secondary  evidence,  135. 
Experts  and  non-experts,  testimony  of.     (See  Opinion,  Evidence  of) 
Explanatory  facts,  relevancy  of,  16,  19. 
Expressions  of  bodily  and  mental  feeling,  provable,  32. 
Extra-judicial  confessions.     (See  Confessions.) 

Fact,  definition  of,  3. 

"  Facts  in  issue,"  definition  of,  xiii. ,  4. 

admissible  in  evidence,  5. 
"  Facts  relevant  to  the  issue,"  definition  of,  xiii.,  4,  246,  247. 

admissible  in  evidence,  5.     (See  Relevancy.) 
Falsa  demonstratio,  parol  evidence  to  explain,  168,  169. 
False  pretences,  obtaining  goods  by,  evidence  of  similar  acts  to  show 

knowledge,  29,  30. 


3o8  INDEX. 

(The  numbers  refer  to  pages.) 

Pulsus  in  uno,falsus  itt  omnibus,  effect  of  maxim,  211,  212. 

Federal  courts,  take  judicial  notice  of  State  laws,  118. 

Feelings,  bodily  and  mental,  declarations  concerning,  competent,  32. 

Felony,  in  trials  for,  prisoner's  admissions  do  not  dispense  with  proof, 

125. 
Fire  caused  by  locomotive  ;  evidence  of  fires  caused  by  other  locomotives 

admissible,  27. 
Flight,  of  an  accused  person,  provable,  16. 
Foreign  acts  of  state,  proof  of  in  English  courts,  288. 
courts,  seals  of,  when  judicially  noticed,  121. 
law,  provable  by  expert  testimony,  103,  104. 

by  printed  volumes  or  authenticated  copies,  104,  151,  152. 
effect  of  not  proving,  104. 

provable  in  trial  court,  not  in  appellate  court,  104. 
when  judicially  noticed,  118. 
judgments,  effect  of  as  I'es  adjicdicata,  99,  100. 
records,  how  proved,  151,  152,  288. 
Forfeiture,  evidence  exposing  to,  privilege  of  witness,  207,  209. 
Former  proceeding,  evidence  in,  when  relevant,  76-79. 
Fraud,  when  judgment  is  impeachable  for,  99,  100. 
in  written  instrument,  provable  by  parol,  162. 
in  trials  for,  defendant's  good  character  irrelevant,  115, 

Gazetteer,  as  evidence,  83. 
General  rights,  defined,  72. 

declarations  concerning,  71,  72. 
Geographical  features  of  State,  judicially  noticed,  122. 
Good  faith,  provable  by  similar  acts  or  declarations,  28. 
Governor  of  State,  accession  of,  judicially  noticed,  120. 
Grand  jurors,  competency  of  as  witnesses,  201,  202. 
Grantor  of  land,  admissions  of  bind  grantee,  41. 

but  only  if  made  before  the  grant,  43. 
Grounds  of  opinion,  when  relevant,  112. 
Guardian,  effect  of  judgment  appointing,  85. 

Habit,  whether  provable  by  evidence  of  repeated  acts,  34. 

whether  provable  to  show  commission  of  a  particular  act,  34. 
Handwriting,  evidence  of,  108-110.     (See  Opinion,  Evidence  of) 

comparison  of  handwritings,  109, 

in  proving  execution  of  attested  documents,  130.     (See  Document.) 
Hearsay  evidence,  not  relevant,  38,  253-255,  xiii. 


INDEX.  309 

(The  numbers  refer  to  pages.) 

Hearsay  evidence  (con  tin  tied). 
defined,  38,  253. 
exceptions  to  this  rule  are 

statements,  forming  part  oi  res  jester.      (See  Res  Gcs/a.') 

admissions,  39-52      (See  Admissions.) 

confessions,  52-59.      (See  Confessions.) 

dying  declarations,  60-62.      (See  Dying  Declarations.) 

declarations  made  in  course  of  business,  63-66.     (See  Course  of 

Business. ) 
declarations  against  interest,  66-70.     (See  Declarations.) 
declarations  by  testator  as  to  contents  of  will,  70. 
declarations  as  to  public  and  general  rights,  71-73. 
declarations  as  to  pedigree,  75-76.     (See  Pedigree.) 
evidence  given  in  former  proceeding,  76-79.     (See  Evidence.) 
Heir,  bound  by  admissions  of  ancestor,  41. 
Historical  works,  statements  in  as  evidence,  81. 
matters  of  public  history  judicially  noticed,  123. 
but  not  of  private  history,  123. 
Homicide,  insanity  as  a  defence  in  trials  for,  5,  179. 
alibi  as  a  defence,  6,  179,  181. 

good  character  of  the  defendant,  when  provable,  6,  113. 
evidence  of  threats  in  trials  for,  14. 
circumstantial  evidence  of,  22,  247. 

dying  declarations  in  trials  for,  60-63.     (See  Dying  Declarations.) 
Hostile  witness,  impeachment  of,  229. 
Husband  and  wife : 

admissions  of  husband  bind  widow  claiming  dower,  41. 

admissions  of  either  as  agent  bind  the  other,  45,  49. 

wife  committing  crime  in  husband's  presence  presumed  to  act  under 

his  coercion,  188. 
neither  can  testify  as  to  absence  of  marital  intercourse,  183. 
in  bastardy  cases,  right  of  wife  to  testify  by  whom  child  was  begot- 
ten, 184. 
competency  of  as  witnesses  in  criminal  cases,  195. 

"  "  "  civil  cases,  196. 

cannot  disclose  confidential  communications,  196,  197,  198. 
cannot,  in  general,  give  evidence  criminating  each  other,  209,  210. 

Identity,  evidence  of,  20,  loi. 

Illegality,  provable  by  parol  to  avoid  written  instrument,  162. 

Impeachment  of  witness.     (See  Witness.) 


310  INDEX. 

(The  numbers  refer  to  pages.) 

Impotence,  power  of  court  to  order  examination  of  person  to  ascertain, 

128. 
Impression,  when  witness  may  testify  to  his,  126. 

Incest,  in  trials  for,  marriage  not  provable  by  cohabitation  and  repute,  iii. 
Incompetent  testimony,  though  admitted  may  be  withdrawn,  22c. 

witnesses,  who  are.     (See  Witness.) 
Indecent  evidence,  when  admissible,  249. 

Indemnitors,  how  affected  by  judgment  against  principal,  94,  95. 
Indorsement  of  payment  on  bond,  bill,  note,  etc.,  effect  of  as  evidence, 
67,  68. 
capacity  to  indorse,  when  party  estopped  to  deny,  191. 
Infamous  persons,  competency  of  as  witnesses,  195. 
what  makes  a  person  infamous,  195. 
crimen  falsi  defined,  195. 

infamy  must  generally  be  proved  by  the  record,  228. 
but  in  some  States  proof  by  cross-e.xamination  permitted,    and  wit- 
ness's answer  may  be  contradicted,  228. 
Information  as  to  commission  of  offences,  witness  privileged  from  disclos- 
ing, 200. 
In  rem^  judgments  as  estoppels,  90. 
Insanity  as  a  defence  in  criminal  cases,  5,  179. 

of  testator  provable  by  subscribing  witnesses,  loi. 
of  other  persons,  how  provable,  loi,  106. 
presumed  to  continue  when  it  has  existed,  187. 
competency  of  insane  persons  as  witnesses,  194. 
Insurance,  expert  testimony  competent  as  to  the  materiality  of  circum- 
stances affecting  the  risk,  106,  107. 
in  trials  concerning  defence  of  arson,  how  proved,  176. 
Intent,  provable  by  similar  acts  or  declarations,  28. 
when  witness  may  testify  to  his,  127. 

parol  evidence  of,  when  admissible  to  aid  in  the  construction  of  docu- 
ments, 167-170. 
Interest,  declarations  against,  66-70.     (See  Declarations.) 

as  affecting  competency  of  witnesses,  193. 
Interlocutory  motions,  affidavits  in,  218,  219. 
Interpretation  and  construction  of  documents,  167-174. 
construction  defined,  167. 

oral  evidence  competent  to  explain  foreign,  obsolete,  technical,  etc., 
expressions,  167,  170. 

to  explain  abbreviations,  illegible  characters,  words  used  in  spe- 
cial sense,  167,  170. 


INDEX.  311 

(The  numbers  refer  to  pages.) 

Interpretation  (^continued). 

to  identify  persons   and  things  referred  to  in  document,  168, 

171. 
but  not  to  show  meaning  of  common  words,  167,  170. 
nor  the  intent  of  an  unintelhgible  document,  167,  171. 
evidence  of  surrounding  circumstances  receivable,  168,  169,  171. 
proper  legal  meaning  preferred  to  one  that  is  less  proper,  168,  171. 
document  having  plain  meaning  not  to  be  explained  by  parol,  168, 

171- 
oral  evidence  of  intention  not  competent  in  cases  of  falsa  detnon- 

stratio,  168,  169,  171. 
oral  evidence  of  intention  competent  in  cases  of  "  equivocation,"  or 
"latent  ambiguity,"  169,  172. 

or  to  rebut  an  equity,  170,  173. 
stranger  to  document  may  give  parol  evidence  varying  it,  173. 
Interpreter,  admissions  of,  51. 

privileged  from  disclosing  communications  to  lawyer,  204. 
Irish  statutes,  proof  of,  287. 
Issue,  definition  of,  4. 

evidence  must  be  relevant  to,  5. 

Joint  contractors,  admissions  of,  45,  46. 

effect  of  admission  in  removing  bar  of  the  Statute  of  Limitations, 

46,  48. 
effect  of  judgment  against  one,  94. 
Joint  debtors,  admissions  of,  45,  46.     (See  Joint  Contractors.) 
Journals  of  legislature,  not  judicially  noticed,  118,  119. 

proof  of,  150,  151. 
Judge,  definition  of,  3. 

decides  on  admissibility  of  evidence,  5,  54. 
minutes  of,  to  prove  evidence  in  former  proceeding,  78. 
when  judgment  is  conclusive  in  favor  of,  97. 
competency  of  as  witness,  198,  199. 
Judgment,  defined,  83. 

how  proved.     (See  Public  Documents.) 

relevancy  of,  83-99. 

conclusive  proof  of  its  legal  effect,  84. 

effect  of  judgment,  condemning  ship  as  prize,  84,  91. 

of  judgment,  appointing  executor,  guardian,  receiver,  etc.,  85. 

of  judgment  of  divorce,  85. 

pf  judgment  naturalizing  an  alien,  85. 


312  INDEX. 

(The  numbers  refer  to  pages.) 

Judgment  {continued). 

how  far  conclusive  of  facts  forming  ground  of  judgment,  86-89. 
conclusive  as  to  facts  actually  decided,  86. 

whether  appearing  on  the  record  or  not,  86. 
parol  evidence  admitted  to  show  what  was  decided,  86. 
conclusive  as  to  matters  which  might  have  been  litigated,  86. 
single  cause  of  action  not  to  be  split,  86,  89. 
defences  not  set  up  in  one  action  cannot  be  afterwards  sued 
on,  86,  89. 
aliter,  as  to  set  off  and  recoupment,  87. 
not  conclusive  unless  rendered  on  the  merits,  87. 
judgment  of  nonsuit  not  conclusive,  86. 
so  of  discontinuance,  87. 
so  of  judgment  of  abatement,  87. 
verdict,  without  judgment,  not  a  bar,  87. 
judgment  on  demurrer,  when  conclusive,  87. 
judgment  by  confession  or  default,  conclusive,  87. 
interlocutory  order  not  conclusive,  87. 

aliter,  as  to  final  orders  on  merits  in  special  proceedings,  87. 
judgment  bars  suit  in  court  of  concurrent  jurisdiction,  87. 
statements  in,  irrelevant  as  between  strangers,  except  in  admiralty 

cases,  90,  91. 
judgments  in  rem  and  their  effect,  90. 
of  forfeiture,  90,  91. 
as  to  personal  status,  90. 
in  attachment  suits,  90,  100. 
effect  of  not  pleading  judgment  as  estoppel,  92. 

maybe  conclusive  though  given  in  evidence  without  pleading,  92. 
irrelevant  as  between  strangers,  93-96. 

and  between  parties  and  privies  when  the  issue  is  different,  93,  95. 
not  binding  on  parties  as  to  matters  not  passed  upon,  93. 

nor  as  to  matters  incidentally  cognizable,  93. 
judgment  against  person  individually,  not  binding  on  him  in  a  repre- 
sentative character,  93. 
effect  of  judgment  against  one  tort-feasor,  upon  the  others,  93,  94. 
of  judgment  against  one  joint-contractor,  94. 
of  judgment  against  principal,  upon  surety  or  indemnitor,  94,  95. 
effect  of  judgment  as  admission,  94,  96. 

effect  of,  to  prove  matters  of  public  and  general  right,  "j^i  9^- 
conclusive  in  favor  of  judge,  97. 

§0  as  to  jurisdictional  facts  which  court  has  power  to  decide,  97. 


INDEX.  313 

(The  numbers  refer  to  pages.) 

Judgment  {contiuned). 

impeachable  for  lack  of  jurisdiction,  97,  98. 

judgment  of  superior  domestic  court  not  impeachable  collaterally, 

98. 
in  some  cases,  lack  of  jurisdiction  available  as  equitable  defence, 

98. 
judgments  of  inferior  courts,  etc.,  impeachable,  98. 
impeachable  by  showing  its  reversal,  98. 

effect  of  pending  appeal  from  judgment,  98. 
impeachable  by  stranger  for  fraud,  99. 

foreign  judgments  and  those  of  sister  States,  effect  of,  99,  100,  262. 
impeachable  for  lack  of  jurisdiction,  fraud,  etc.,  99,  100. 
proof  of,  147,  148,  151. 
Judicial  confession.     (See  Confessions.) 
Judicial  notice,  of  what  facts  taken,  117-124. 

taken  of  common  and  statute  law,  corporate  charters,  etc.,  117. 
of  the  laws  of  antecedent  government,  117. 
Federal  judges  notice  laws  of  States,  118. 
State  courts  notice  Acts  of  Congress,  118. 
of  the  legislature,  its  sessions,  etc.,  118. 

of  customs  of  business,  and  customs  enforced  by  courts,  118,  119. 
of  domestic  courts,  their  judges,  records,  rules,  terms,  etc.,  119, 

120,  122. 
of  the  status  and  signatures  of  court  officers,  119. 
of  the  constitution  of  the  government,  the  accession  of  the  execu- 
tive and  his  signature,  120,  121. 
status  of  public  officers,  of  sheriffs,  marshals,  etc.,  120. 
of  foreign  states,  their  seals,  and  the  law  of  nations,  120-122. 
of  foreign  admiralty  courts  and  their  seals,  121. 
of  seals  of  State,  of  domestic  courts,  of  notaries  public,  121-123. 
of  proclamations,  treaties,  executive  decrees,  etc.,  121. 
of  days  of  election,  121. 

of  the  extent  of  the  country,  its  civil  divisions,  geographical  feat- 
ures, etc.,  121,  122,  124. 
of  public  matters  concerning  the  government,  121,  122,  124. 
of  matters  happening  in  the  course  of  nature,  123,  124. 
of  the  divisions  of  time,  the  meaning  of  words  and  abbreviations, 

123,  124. 
of  matters  of  general  knowledge  and  experience,  124. 
notice  not  taken  of  private  statutes,  nor  city  ordinances,  117, 
nor  of  transactions  in  legislative  journals,  n8,  119. 


314  INDEX. 

(The  numbers  refer  to  pages.) 

Judicial  notice  {continued). 

nor  of  pendency  of  another  action,  119. 

nor  of  status  of  sheriff's  deputy,  120. 

nor  of  seals  of  foreign  municipal  courts  or  of  foreign  officers,  121. 

nor  of  orders  of  military  commander,  nor  private  executive  acts, 

121. 
nor  matters  of  private  history,  123. 
no  evidence  need  be  given  of  facts  judicially  noticed,  125. 

nor  of  facts  admitted,  125. 
judge  may  refer  to  books,  etc.,  to  ascertain  matters  requiring  notice, 
125. 
Jurisdiction,  of  court,  when  judgment  impeachable  for  lack  of,  97-100. 

of  surrogate  to  appoint  administrator  upon  estate  of  living  person,  85. 
Jurors,  grand  and  petit,  competency  of  as  witnesses,  201. 

Knowledge,  provable  by  similar  acts  or  declarations,  28. 

Land,  application  of  presumption  to  question  of  ownership  of,  7,  8. 
title  to,  how  provable,  12. 
value  of,  how  provable,  26,  102. 
admissions  concerning.     (See  Admissions.) 
Landlord  and  tenant : 

landlord's  admissions  bind  tenant,  42. 
tenant  estopped  to  deny  landlord's  title,  190. 
admissions  of  tenant  in  common  do  not  bind  co-tenant,  47. 
Lascivious  cohabitation,  in  trials  for,  marriage  not  provable  by  cohabita- 
tion and  repute,  iii. 
Latent  ambiguity,  parol  evidence  to  explain,  169. 
Law,  common  and  statute,  judicially  noticed,  117. 
of  nations,  judicially  noticed,  121. 
foreign,  how  proved,  103,  104,  149-152. 
Lawyers.     (See  Attorney  ;  Barrister.) 
Leading  questions,  nature  of,  224. 

not  permitted  on  the  examination  in  chief  or  on  re-examination,  224. 

except  when  witness  is  hostile,  224. 

or  the  examination  relates  to  items,  details,  etc.,  224. 

or  when  necessary  to  direct  witness's  attention  to  subject-matter, 

224. 
or  when  court  allows  them,  224. 
permitted  on  cross-examination,  224. 

but  not  in  some  States,  wljen  counsel  inquires  as  to  new  matter, 
225. 


INDEX.                                         315  : 

(The  numbers  refer  to  pages. )  ; 

Lease,  as  evidence  of  public  and  general  rights,  73.  : 

Legatee,  admissions  of  do  not  bind  co-legatee,  47.  \ 
Legislative  journals,  when  judicially  noticed,  118,  119. 

proof  of,  150,  151.  j 

Legitimacy  of  children,  presumed  from  birth  in  wedlock,  186,  \ 

Letter-press  copies  of  writings,  are  secondary  evidence,  129.  4 

relevancy  of,  to  show  handwriting,  no.  \ 

Letters,  mailing  of,  raises  presumption  of  delivery,  36,  187.  ' 

failure  to  answer,  no  admission  of  their  contents,  40.  ~! 

Letters  rogatory,  when  issued  for  the  taking  of  depositions,  217.  ■ 

Libel,  evidence  of  similar  statements  to  show  malice,  30.  j. 

evidence  of  plaintiffs  bad  character  relevant,  115.  i 

aliti-r,  as  to  reports  and  particular  acts  of  misconduct,  115.  ! 

amount  of  proof  required  in  justifying  charge  of  crime,  176. 

License,  burden  of  proof  to  show  possession  of,  181.  ; 

licensee  of  property  estopped  to  deny  licensor's  title,  190,  191. 

Lien  on  document,  as  excusing  witness  from  producing,  207.  '• 

Life,  continuance  of,  presumed,  187.  '■ 

when  presumption  of  death  arises,  184.  j 

Limitations.     (See  Statute  of  Limitations).  ^ 

Liquors,  intoxicating  quality  of,  when  judicially  noticed,  124.  \ 
Lost  grant,  presumption  of,  185. 

Lunatic,  competency  of  as  witness,  194.  ^ 

j 

Malice,  provable  by  similar  acts  or  declarations,  28.  \ 

in  cases  of  libel  and  slander,  30.  i 

Malicious  prosecution,  in  trials  for,  plaintiffs  bad  character  relevant,  116,  < 

plaintiff  must  prove  malice  and  want  of  probable  cause,  179.  ^ 

Maps,  competency  of  as  evidence,  81,  82.  ; 

to  prove  public  and  general  rights,  72-  ; 
Maritime  courts,  judicially  noticed,  121. 

Market-reports,  as  evidence,  83.  ; 

Marriage,  as  matter  of  pedigree,  73,  74.  i 

opinions  as  to  existence  of,  when  relevant,  III.  ; 

provable  by  admissions,  iii.  ■: 

communications  during,  privileged,  196-198. 

in  trials  for  breach  of  promise,  woman's  bad  character  relevant,  116. 

corroboration  of  plaintiff's  evidence,  when  required,  210,  211.  ; 

Marshal,  status  and  signature  of,  judicially  noticed,  120.  1 

alitcr,  as  to  his  deputy,  120. 
Masters  in  chancery,  duties  of,  217. 


3i6  INDEX. 

(The  numbers  refer  to  pages.) 

Material  alterations,  defined,  159,  160. 

effect  of,  158,  160. 
Measures,  weights  and,  judicially  noticed,  123. 
Medical  men.-    (See  Physician. ) 
Medical  treatises,  as  evidence,  82. 
Memorandum,    does  not  exclude  parol  evidence  of  transaction,   138, 

164. 
Memory,  refreshing.     (See  Refreshing  Memory.) 
Mental  feelings,  expressions  of,  provable,  32. 
Messages  of  executive,  judicially  noticed,  121. 
Misprision  of  treason,  two  witnesses  needed  in  trials  for,  212. 
Mistake,  provable  by  parol  to  avoid  written  instrument,  162. 
Moneys,  judicially  noticed,  123. 
Mortgage,, parol  evidence  received  to  show  deed  or  bill  of  sale  to  be  & 

mortgage,  162. 
Motions,  affidavits  used  in  making  and  their  contents,  216,  218,  219. 
Motive,  evidence  of,  13,  14,  15. 
Murder.     (See  Homicide.) 

Naturalization,  effect  of  judgment  of,  85. 

Negligence,  not  provable  by  evidence  of  prior  acts  of  negligence,  26. 

aliter,  in  some  States,  34. 

whether  system  or  course  of  business  may  be  shown  to  prove  negli- 
gence, 33,  34. 

in  trial  for,  habit  of  carefulness  irrelevant,  34,  115. 

burden  of  proof  to  show  negligence  and   contributory  negligence, 
181. 
New  trial,  not  granted  for  improper  admission  or  rejection  of  evidence, 

unless  party  be  prejudiced  thereby,  245. 
Nicknames,  in  document,  explainable  by  parol  evidence,  168. 
Non-experts,  evidence  of  opinion  by.     (See  Opinion,  Evidence  of). 
Nonsuit,  judgment  of,  not  a  bar,  86. 
Northampton  tables,  as  evidence,  83. 
Notary,  book  entries  of,  as  evidence,  63. 

seal  of,  judicially  noticed,  121. 
Notice  to  produce  documents,  object  of,  265. 

secondary  evidence  admissible,  upon  failure  to  produce,  135. 
but  not  unless  due  notice  be  given,  139. 

notice  may  be  given  to  party  or  his  attorney,  139. 

must  be  given  a  sufficient  time  beforehand,  140. 

and  must  describe  document,  i^^p. 


INDEX.  317 

(The  numbers  refer  to  pages.) 

Notice  to  produce  documents  (conthiued). 

secondary  evidence  admissible  without  notice  : 
when  the  document  is  itself  a  notice,  141. 
when  the  action  seeks  it  in  the  opponent's  possession,  141. 
when  the  opponent  has  obtained  it  from  person  subpoenaed,  141. 
when  the  opponent  has  the  document  in  court,  141. 
when  there  are  duplicate  originals,  141. 
notice  to  be  given  though  party  notified  is  absent  from  State,  141. 
party  calling  for  and  inspecting  document,  bound  to  give  it  in  evi- 
dence, if  required  by  other  party,  240. 
party  refusing  to  produce  when  duly  notified,  cannot  use  document 
as  evidence  without  consent,  240. 
Notices,  provable  orally,  though  given  in  writing,  138. 
Number  of  witnesses,  212.     (See  Witness). 

Oath,  confessions  made  under,  effect  of,  57,  58. 
witness  to  be  under,  214. 

or  may  affirm,  214,  215. 
form  of,  215. 

wilful  false  oath  constitutes  perjury,  214,  215. 
Objects,  shown  to  jury  as  evidence,  127. 
Office,  right  to,  shown  by  person's  acting  as  officer,  36,  165. 
Office-copy  of  document,  defined,  144,  145. 
when  admissible  in  evidence,  144,  145. 
is  secondary  evidence,  135. 
Officers,  of  court,  judicially  noticed,  119. 
public,  judicially  noticed,  120. 

presumed  to  perform  their  official  duties,  187, 
Opinion,  evidence  of,  generally  irrelevant,  xiii.,  100. 

of  subscribing  witnesses  as  to  testator's  sanity,  relevant,  loi. 

of  non-experts  as  to  sanity  or  insanity,  when  relevant,  loi. 

of  non-experts  as  to  matters  within   common   comprehension,  101, 

106,  107. 
of  experts  as  to  insanity,  106. 
evidence  of,  as  to  damages,  102. 

as  to  value  of  property,  services,  etc.,  102. 
of  experts  on  points  of  science  or  art,  relevant,  103-107, 
"  science  or  art  "  defined,  103. 

as  to  foreign  law,  or  the  law  of  sister  States,  103,  104. 
other  modes  of  proving  such  laws,  104,  149-152. 
effect  of  not  proving  such  laws,  104. 
expert  usually  a  lawyer,  104. 


3i8  INDEX. 

(The  numbers  refer  to  pages.) 

Opinion  (continued). 

as  to  matters  within  common  knowledge,  irrelevant,  103. 
competency  of  expert,  determinable  by  judge,  104,  105. 
opinion  of  expert  as  to  existence  of  facts,  irrelevant,  105,  106. 
knowledge  of  expert  tested  by  standard  treatises,  83. 
when  questions  to  expert  must  be  in  hypothetical  form,  105. 

mode  of  framing  such  question,  105. 
opinion  of  expert  as  to  effect  of  evidence,  irrelevant,  105. 

so  as  to  matter  of  legal  or  moral  obligation,  105. 
opinion  of  expert  as  to  materiality  of  circumstances  affecting  in- 
surance risk,  106,  107. 
relevancy  of  facts  bearing  upon  opinions  of  experts,  107. 
as  to  handwriting,  when  relevant,  106,  108. 

what  qualifies  a  person  to  testify  as  to  handwriting,  108,  109. 
comparison  of  writings,  when  permitted,  109,  no. 

collateral  writings,  when  admissible  as  standards,  no. 
letter-press  copies  and  photographic  copies,  when  used,  no, 

III. 
signature  made  in  court,  when  used  as  a  standard,  no. 
as  to  existence  of  marriage,  when  relevant,  in. 
grounds  of  opinion,  relevancy  of,  112. 

opinion-evidence  to  be  given  by  person  having  the  opinion,  126. 
witness  may  testify  to  his  impression,  belief,  etc.,  126. 
Oral  admissions,  effect  of,  40. 
Oral  evidence,  defined,  3. 
proof  by,  126. 
must  be  direct,  126. 

relevant  to  show  grounds  of  judgment,  86. 

not  relevant  to  add  to,  vary,  or  contradict  a  writing,  xiv.,  161,  266. 
but  relevant  to  show  fraud,  mistake,  illegality,  want  of  considera' 

tion,  etc.,  162. 
and  that  deed  or  bill  of  sale  is  a  mortgage,  162. 
and  that  signer  of  instrument  is  agent,  not  principal,  162. 
and  to  show  true  relations  of  parties  to  an  instrument,  162. 
and  to  vary  receipts,  163. 

and  to  show  the  existence  of  a  distinct  oral  agreement,  163. 
or  an  oral  agreement  forming  a  condition  precedent,  163. 
or  a  subsequent  oral  agreement  to  rescind  or  modify,  163. 
and  to  show  usage  or  custom,  164. 

oral  evidence  of  transaction  receivable,   though  memorandum 
made,  138,  164. 


INDEX.  319 

(The  numbers  refer  to  pages.) 

Oral  evidence  (continued^. 

legal  relation  created  by  writing,  provable  by  parol,  164. 
that  person  is  public  officer,  provable  by  parol,  36,  165. 
contract  may  be  reformed  in  equity  by  parol,  164. 
oral  evidence  competent  to  explain  foreign,  obsolete,  technical, 
etc. ,  expressions,  167,  170. 
to  explain  abbreviations,  illegible  characters,  etc.,  167,  170. 
to  identify  persons  and  things  referred  to  in  document,  168, 

171. 
to  show  "  surrounding  circumstances,"  168,  169,  171. 
but  not  to  explain  document  having  plain  meaning,  168,  171. 

nor  to  show  intention  in  cases  oi falsa  demonstratio,  168,  169, 
171,  268. 
but  competent  to  show  intention  in  cases  of  "  equivocation,"  or 
"  latent  ambiguity,"  169,  172,  268,  269. 
and  to  rebut  an  equity,  170,  173. 
stranger  to  document  may  vary  it  by  parol,  173. 
mode  of  taking  oral  evidence,  214-240.     (See  Witness.) 

may  be  taken  in  open  court  on  preliminary  or  final  hearing,  216. 
preliminary  examination  of  prisoner  in  criminal  cases,  216. 
examination  of  parties   and  witnesses  before   trial  in   civil 

cases,  216. 
parties  not  examined  before  trial    in   suits  at  law  in  U.   S. 
courts,  216. 
may  be  taken  out  of  court  on  affidavit,  216,  218.     (See  Affidavit.) 
or  in  taking  depositions  under  a  commission,  216-218. 
or  before  officers  of  the  court  or  other   persons    duly  ap- 
pointed or  selected,  217. 
as  referees,  auditors,  examiners,  etc.,  217. 
Order  of  court,  as  evidence  of  public  and  general  right's,  73. 

effect  of  as  res  adj udicata^  87. 
Orders  in  council,  proof  of,  287. 
Ordinances,  municipal,  not  judicially  noticed,  117. 
of  state,  judicially  noticed,  121. 

Parol  evidence  to  vary  a  writing.     (See  Oral  Evidence.) 
Partners,  admissions  of  one  bind  the  others,  45,  49. 

effect  of  admissions  after  dissolution,  46. 

retiring  partner  giving  no  notice,  estopped  to  deny  that  he  is  partner, 
189. 

entries  in  partnership  books  evidence  against  partner,  40. 


320  INDEX. 

(The  numbers  refer  to  pages.) 

Part-owners  of  ship,  admissions  of  49. 
Party,  admissions  of     (See  Admissions.) 
book  entries  made  by,  relevancy  of,  64. 
competency  of,  as  witness,  193. 

may  be  subpoenaed,   140,   208.      (See  Witness  ;  Subpoena  duces 

tecum.) 
voluntarily  becoming  witness  in  criminal  case  may  be  fully  cross- 
examined,  209. 
as  witness  in  other  cases  may  be  cross-examined  like  other  wit- 
nesses, 226. 
impeachment  of,  as  witness,  233. 
examination  of,  before  trial  in  civil  suits,  216. 

not  allowed  in  U.  S.  courts,  in  actions  at  law,  216. 
Payment,  provable  without  producing  receipt,  138. 

indorsement  of  on  bond,  bill,  note,  etc.,  effect  of,  as  evidence,  67,  68. 
Pedigree,  declarations  concerning,  73. 
what  constitutes  pedigree,  73. 
includes  birth,  marriage,  death,  and  the  time  and  place  thereof,  73. 

aliter,  in  this  country,  as  to  place,  74. 
who  may  be  a  declarant,  74. 

declarations  only  competent  when  pedigree  is  in  issue,  74. 
a  person's  age  matter  of  pedigree,  74. 
how  declarations  may  be  made,  74,  76. 
must  be  made  ajiie  litem  mo  tarn,  75. 
declarations  of  neighbors,  friends,  etc.,  incompetent,  74. 
Penalty,  evidence  exposing  to,  privilege  of  witness  concerning,  207,  209. 
Perjury,  in  trials  for,  evidence  required  to  corroborate  witness,  212,  213. 
wilful  false  testimony,  violating  witness's  oath  or  affirmation,  consti- 
tutes, 2J4,  215. 
Petit  jurors,  competency  of,  as  witnesses,  201. 
Photographs,  as  evidence,  128,  129. 

photographic  copies,  when  primary  and  when  secondary  evidence, 
129. 
"  "        when  used  to.  show  handwriting.  III. 

Physical  examination  of  a  party,  power  of  court  to  order,  128. 
Physician,   privilege  of  as  witness   as  to   professional  communications, 
205,  206. 
examination  of  party  by,  power  of  court  to  order,  128. 
Plans  of  land,  as  evidence,  82. 
Pleading,  admissions  made  in,  40. 

of  judgment,  whether  necessary  or  not,  92. 


INDEX.  321 

(The  numbers  refer  to  pages.) 

Possession,  of  property  raises  presumption  of  ownership,  188. 
of  property  after  crime  committed,  provable,  16,  28,  247. 

raises  presumption  of  guilt,  178,  179. 
Preparation,  evidence  of,  relevant,  14. 

Preponderance  of  evidence,  required  in  civil  cases,  176.     (See  Burden  of 
Proof) 
to  prove  insanity  and  alibi  in  criminal  cases,  179. 
President,  accession  of,  judicially  noticed,  120. 
Presumption,  definition  of,  4. 

what  presumptions  belong  to  the  law  of  evidence,  xv.,  xvi. 
conclusive,  4,  246. 
disputable,  4,  246. 

instances  of,  187,  188. 
as  to  neighboring  pieces  of  land,  when  relevant,  7,  8. 
of  the  delivery  of  letters  from  mailing  them,  36,  187. 
of  innocence  when  crime  is  charged,  175,  179. 

when  preferred  to  that  of  continuance  of  life,  177. 
of  guilt  from  recent  possession  cf  stolen  goods,  178,  179. 
that  person  receiving  rent  of  land,  is  owner,  180. 
of  damages  against  wrongdoer,  180. 
of  legitimacy  of  children  from  birth  in  wedlock,  183. 
of  death  from  seven  years'  absence,  184. 

of  the  order  of  death,  when  persons  perish  in  the  same  calamity,  185. 
of  lost  grant,  185. 

of  a  right  by  prescription  to  light  and  air,  186. 
of  a  right  to  percolating  waters,  186. 
of  regularity  in  the  performance  of  official  acts,  187,  271. 
of  deeds  to  complete  title,  187. 

of  the  delivery  of  a  deed,  found  in  the  grantee's  hands,  155. 
of  the  continuance  of  a  state  of  things  once  existing,  187. 

as  a  personal  relation,  187. 

continuance  of  life,  187. 

residence,  187. 

insanity,  187. 
of  the  observance  of  the  regular  course  of  business,  187. 
that  a  man  intends  the  natural  consequences  of  his  acts,  188. 
that  a  wife  committing  crimes  in  her  husband's  presence,  acts  under 

his  coercion,  188. 
from  failure  to  call  a  witness,  220. 
as  to  documents,  153-160. 

as  to  date,  153. 


322  INDEX.  \ 

,  ■ 

(The  numbers  refer  to  pages.)  '■. 

Presumption  {conthneed).  '.\ 

as  to  stamp,  154.  ^ 

as  to  sealing  and  delivery  of  deeds,  153.     (See  Seals.)  -J 

as  to  ancient  documents,  156.  4 

as  to  alterations.     (See  Alteration.)  •                       - 

equitable  presumption  as  to  document  may  be  rebutted  by  parol  "^ 

evidence,  170,  173.  ; 

burden  of  proof  rests  on  party  against  whom  presumption  exists,  177. 

Previous  conviction,  relevancy  of,  in  prosecutions  for  receiving    stolen  • 

goods,  28,  29.  ; 

Price  current  list,  as  evidence,  83.  -•' 

Primary  evidence,  defined,  xiv. ,  127.     (See  Document.)  _^ 

Principal  and  agent :  } 

admissions  of  agent  bind  principal,  45.  J 

parol  evidence  competent  to  show  that  signer  of  instrument  signed  S 

as  agent,  not  as  principal,  162.  ■ 

agent  estopped  to  deny  principal's  title,  191. 

agency  shown  by  person's  acting  as  agent  on  other  occasions,  36.  ' 
Principal  and  surety  :  . 
principal's  admissions  do  not  bind  surety,  48.  .'_ 
effect  of  judgment  against  principal,  94,  95.  ' 
parol  evidence  competent  to  show  parties  to  instrument  to  be  co- 
sureties, 162.  i 
alteration  of  document  by  principal's  consent  may  avoid  it  as  to  \ 
surety,  157. 
Private  rights,  declarations  concerning,  72. 
Privies,  admissions  by,  41,  42.     (See  Admissions.) 

Privilege  of  witnesses.     (See  Witness.)  i 

Privileged  communications  between  husband  and  wife,  196,  197,  198.  1 

between  attorney  and  client,  202-205.     (See  Attorney.)  J 

between  clergyman  and  person  confessing,  206.  j 

between  physician  and  patient,  206. 

Prize,  effect  of  judgment  of,  84,  91.  ' 

Proclamations,  recitals  in  as  evidence,  79,  80. 

judicially  noticed,  121.  4 

proof  of,  150,  151,  287.  ! 

Professional  communications.     (See  Privileged  Communications.)  .' 

Promissory  note,  admissions  of  holder  of,  44.  i 

indorsement  of  payment  on,  effect  of  as  evidence,  67,  68.  -; 

Proof.     (See  Evidence.)  J 

conclusive,  definition  of,  4. 


INDEX.  323 

(The  numbers  refer  to  pages.) 

Proof  (contintted). 

order  of  discretionary  with  court,  221. 
burden  of.     (See  Burden  of  Proof) 
Property,  value  of  not  provable  by  that  of  similar  articles,  26. 

facts  showing  rights  of,  or  exercise  of  rights,  12,  250, 
Public  affairs,  privilege  of  witness  as  to  disclosing,  200. 
Public  documents,  proof  of,  142-152. 
by  producing  document  itself,  142, 
by  examined  copy,  143. 
by  exemplification,  144. 
by  office  copy,  144,  145. 
by  certified  copy,  145,  146. 
by  officially  printed  copy,  149. 

of  Revised  Statutes  of  U.  S.,  149. 
of  State  statutes,  104,  149,  150. 
proof  of  general  records  of  the  nation  or  State,  143. 

of  records  of  the  several  American  States,  147,  148. 
of  statutes  of  any  State  or  Territory,  104,  150. 
of  proclamations,  acts  of  state,  legislative  journals,  etc.,  150. 
of  foreign  written  laws,  records,  etc.,  104,  151,  152. 
English  and  Irish  public  documents,  proof  of,  286-290. 
Public  facts,  recitals  of  as  evidence,  79,  80. 
Public  laws,  when  judicially  noticed,  117,  118. 
Public  officers.      (See  Officers.) 
Public  records,  entries  in  as  evidence,  80. 
Public  rights,  defined,  72. 

declarations  concerning,  71,  72. 
Publication  of  will,  71. 

Quarrelsome  character  of  person,  when  provable,  14. 

Queen's  printers'  copies  of  Acts  of  Parliament,  as  evidence,  286. 

Rape,  evidence  of  woman's  complaint  in  trials  for,  17,  19,  251. 

particulars  of  complaint  not  generally  provable,  17,  19. 

evidence  of  her  bad  reputation  for  chastity,  competent,  235. 

evidence  of  her  previous  connection  with  the  prisoner  or  other  per- 
sons, competency  of,  235,  236. 
Reading  books  to  jury,  whether  permissible,  82,  83. 
Rebuttal,  evidence  in,  when  given,  224. 
Receipt,  not  necessary  as  evidence  to  prove  payment,  138. 

may  be  varied  by  parol  evidence,  163. 


324  INDEX. 

(The  numbers  refer  to  pages.) 

Receiver,  effect  of  judgment  appointing,  85. 

Receiving  stolen  goods,  similar  acts  relevant  to  show  knowledge,  29. 
Recitals    of  public    facts,   in    statutes,   proclamations,  etc.,  when   rele- 
vant, 79. 
Records,  public.     (See  Public  Documents  ;  Public  Records.) 
Record  books  of  courts,  judicially  noticed,  119. 

Recoupment,  matter  of  may  be  set  up  in  defence,  or  sued  on  indepen- 
dently, 87. 
Re-examination  of  witness.     (See  Witness.) 
Referee,  competency  of  as  witness,  199. 

power  of  to  take  testimony,  decide  causes,  etc.,  217. 
appointed  to  take  evidence,  cannot  pass  upon  objections,  218. 
aliter,  when  he  acts  as  judge  to  decide  causes,  218. 
Refreshing  memory  of  witness  : 

witness  may  use  writing  made  at  or  near  time  of  transaction,  237. 

three  cases  of  refreshing  memory,  237,  238. 

writing  not  itself  competent  evidence,  generally,  238,  239. 

aliter,  in  some  States  as  to  writing  made  by  witness,  when  he  has 
no  present  recollection  of  the  facts,  238,  239. 
opposite  party  allowed  to  inspect  writing,  and  may  cross-e.xamine 
thereon,  239. 
object  of  cross-examination,  239. 
writing  made  several  months  after  transaction,  not  allowed  to  be 
used,  239. 
Registers,  public,  entries  in  as  evidence,  80. 
Rejection  of  evidence,  improper,  not  a  ground  for  a  new  trial,  unless 

party  prejudiced  thereby,  245. 
Relationship  of  parties,  evidence  of,  20. 
Relevancy,  definition  of,  xiii.,  4,  246-249.     (See  Evidence.) 
relevant  facts  admissible  in  evidence,  5. 

except  when  too  remote,  5. 
of  facts  forming  part  of  the  res  gcstce,-(i,  16.     (See  Res  Gestce.) 
of  facts  and  declarations  of  conspirators,  10,  11. 
of  facts  showing  title,  12.  t 

of  facts  showing  custom,  13. 

of  facts  showing  motive,  preparation,  subsequent  conduct,  explana- 
tory statements,  13,  14,  15. 
of  complaints,  statements  in  person's  presence,  etc.,  16. 
of  facts  necessary  to  explain  or  introduce  relevant  facts,  19. 
of  similar  but  unconnected  facts,  24-28,  xiii.,  251. 
of  acts  showing  intention,  good  faith,  etc. ,  28-33. 


INDEX.  325 

(The  numbers  refer  to  pages. ) 

Relevancy  (continued). 

of  facts  showing  system,  ^3'  34- 

of  facts  showing  course  of  business,  35-37. 

of  hearsay  evidence,  38.     (See  Hearsay.) 

of  admissions,  39-52.     (See  Admissions. ) 

of  confessions,  52-59.     (See  Confessions.) 

of  statements  of  deceased  persons,  59-79.     (See  Declarations.) 

of  statements  in  public  documents  and  records,  79,  80. 

of  statements  in  historical  and  scientific  works,  maps,  etc.,  81,  82. 

of  statemenis  in  judgments,  83-99. 

of  evidence  of  opinion.     (See  Opinion,  Evidence  of) 

of  evidence  of  character.     (See  Character,  Evidence  of) 
Remoteness  of  evidence,  excludes  it,  5,  14. 
Rent  of  land,  person  receiving  presumed  to  be  owner,  180. 
Reports,  law,  as  evidence,  83,  104. 

Reputation,  evidence  of     (See  Character,  Evidence  of.) 
Fes  txdjudkata.     (See  Judgment.) 
Res  gesta:.^  doctrine  of,  6,  7,  16,  250,  251. 

when  acts  or  declarations  will  form  a  part  of,  7. 

illustrations  of  doctrine,  9,  18,  19,  21,  41. 

declarations  of  conspirators,  10,  11. 

expressions  of  bodily  and  mental  feeling,  32. 

declarations  of  landowner  as  to  nature  of  his  claim,  42. 

declarations  of  agents  in  course  of  agency,  45. 

declarations  of  principal  as  affecting  surety,  48. 

declarations  made  in  course  of  business,  etc.,  63-66. 
Resemblance  of  child  to  parent,  evidence  of  23. 
Rights,  public  and  general,  declarations  concerning,  71-73. 

private,  declarations  concerning,  72. 
Roman  law,  compared  with  common-law,  xx. 
Rules  of  court,  judicially  noticed,  119,  120. 

Sanity,  of  testator,  provable  by  subscribing  witnesses,  loi. 

of  other  persons,  whether  provable  by  evidence  of  opinion,  loi. 
Science,  matters  of,  provable  by  opinion-evidence,  103. 
Scientific  treatises,  competency  of  as  evidence,  82. 

Seal,  of  States,  of  admiralty  courts,  of  notaries,  etc.,  judicially  noticed, 
120,  121,  123. 

but  not,  those  of  foreign  municipal  courts,  or  of  foreign  officers,  12L 

English  seals  recognized  in  English  courts,  123. 

of  a  deed,  presumed  to  be  that  of  party  signing,  155. 


326  INDEX. 

(The  numbers  refer  to  pages.) 

Seal  {continued). 

instrument  without  seal  not  a  deed,  though  it  allege  a  sealing,  155. 

if  deed  be  recorded  without  a  seal,  sealing  may  be  presumed,  155. 
Secondary  evidence,  defined,  xiv. ,  135.     (See  Document.) 
Seduction,  plaintiffs  bad  character  irrelevant  in  trials  for,  115. 

aliter,  as  to  woman's  bad  character,  116,  236. 

under  promise  of  marriage,  is  a  crime,  211. 

corroboration   of  woman's   evidence   in   trials   for,    when   required, 
211. 

woman  cannot  generally  be  cross-e.xamined  as  to  connection  with 
other  men,  236. 
Senator,  status  of,  judicially  noticed,  120. 

Set-off,  may  be  set  up  in  defence  or  sued  on  independently,  87. 
Sheriff,  when  bound  by  admissions  of  deputy,  41. 

status  and  signature  of,  judicially  noticed,  120. 
aliter,  as  to  his  deputy,  120. 
Shipmaster,  when  estopped  to  deny  bill  of  lading  signed  by  him,  192. 
Signatures,  of  judges  and  public  officers,  judicially  noticed,  119,  120,  122. 

proof  of,  to  show  execution  of  document,  130,  131. 

made  in  court,  when  used  as  standards  of  comparison,  no. 
Similar  facts  to  those  in  issue,  generally  irrelevant,  xiii.,  24-26,  251. 

illustrations  of  rule,  24-26. 

but  relevant  when  they   are  the  effects  of  the  same   cause,  acting 
under  like  conditions,  24,  26,  27. 

relevant  to  show  the  quality  of  an  act,  24,  26,  27. 

relevant  to  show  intention,  knowledge,  good  or  bad  faith,  malice,  etc. , 

28-33- 

relevant  to  show  system,  33-35. 
Slander,  evidence  of  similar  statements  to  show  malice,  relevant,  30. 

evidence  of  plaintiffs  bad  character  relevant,  115. 

aliter,  as  to  reports  and  particular  acts  of  misconduct,  115. 

amount  of  proof  required  in  justifying  charge  of  crime,  176. 
Solicitor.     (See  Attorney.) 
Special  proceeding,  effect  of  order  in,  87. 
Splitting  cause  of  action,  not  permissible,  86,  89. 
Spoliation,  distinguished  from  alteration,  158. 
Stamp  in  documents,  presumption  as  to,  154. 
State  affairs,  privilege  of  witness  as  to  disclosing,  200. 
Statements,  forming  part  oi res gestce.     (See  Res  Gesta.) 

in  presence  of  a  person,  when  provable,  18. 

of  deceased  persons,  when  relevant,  59.     (See  Declarations.) 


INDEX.  327 

(The  numbers  refer  to  pages.) 

Statements  {contimtcd). 

in  books,  documents,  and  records,  when  relevant,  79-99.    (See  Judg- 
ment.) 
inconsistent  statements  of  witness,  when  provable,  229,  230,  234. 
Statute,  recitals  in  as  evidence,  79,  80. 
of  forum,  judicially  noticed,  117,  118. 
aliter,  as  to  private  statutes,  117. 
of  other  States  or  countries,  how  provable,  103,  104,  149,  150,  151. 
Statute  of  Frauds,  contract  within,  how  far  modifiable  by  parol  evidence, 

163,  164,  267. 
Statute  of  Limitations,  effect  of  admissions  by  one  partner  or  joint  con- 
tractor in  removing  the  bar  of,  46,  48. 
effect  of  indorsement  of  payment  on  bond,  bill,  note,  etc.,  in  remov- 
ing bar  of  the  statute,  67,  68. 
effect  of  prosecution  being  barred,  upon  the  privilege  of  witness  as  to 
criminating  evidence,  209. 
Stolen  goods,  receiving,  facts  relevant  to  show  knowledge,  29. 
Strangers  to  suit,  admissions  by,  50. 

effect  of  judgment  upon,  90,  93.     (See  Judgment.) 
Suborning  of  witnesses,  effect  of  as  evidence,  15,  16. 
Subpana  duces  tecum,  is  a  compulsory  writ,  140. 
penalties  for  disobeying,  140. 
on  whom  served,  140. 

may  now  be  served  on  party  to  action  or  on  corporation,  140,  208. 
witness  compellable  to  produce  his  private  papers,  207. 

not  privileged  from  producing  papers  on  which  he  has  a  lien,  or 

which  would  expose  him  to  civil  liability,  207. 
but  court  may  relieve  him  of  this  duty,  207. 

attorney  or  agent  compellable  to  produce  papers  which  client 
could  be  required  to  produce,  208. 
aliter,  as  to  other  papers,  208. 
witness  not  compellable  to  produce   papers    that   would    criminate 
him,  207. 
or  would  e.xpose  him  to  a  penalty  or  forfeiture,  207. 
when  privileged  witness  withholds  document,  secondary  evidence  ad- 
missible, 136,  208. 
aliter,  when  witness  not  privileged  withholds  it,  140. 
agents   of  telegraph   company   compellable   to   produce    messages, 

140,  208. 
witness  not  cross-e.xaminable,  when  merely  called  to  produce  paper 
on  subpceiia^  221, 


328  INDEX. 

(The  numbers  refer  to  pages.) 

Subscribing  witness,  who  is,  130. 

proof  of  execution  of  document  attested  by,  130.     (See  Document.) 

deceased,  declarations  of  irrelevant,  38. 

to  will,  may  testify  as  to  his  opinion  of  testator's  sanity,  loi. 
Supreme    Court   of  Justice    (England),   rules   of  practice   in  judicially 
noticed,  120. 

does  not  notice  rules  of  inferior  courts,  121. 

signatures  of  its  judges  judicially  noticed,  122. 
Surety.     (See  Principal  and  Surety.) 
Surrogate,  power  of  to  appoint  administrator  on  estate  of  living  person, 

85- 
Sustaining  of  impeached  witness.     (See  Witness.) 
System,  provable  by  evidence  of  similar  acts,  33-35. 

Technical  words,  explained  by  parol  evidence,  167. 
Telegrams,  as  evidence,  whether  primary  or  secondary,  129. 

presumption  of  delivery  from  sending,  37. 

agent  of  telegraph  company  required  to  produce  on  subpxna  duces 
tecum^  140,  208. 
Tenant.     (See  Landlord  and  Tenant.) 
Terms  of  court,  judicially  noticed,  119. 
Testamentary  disposition,  shown  by  similar  statements,  33. 
Testator,  admissions  of,  41. 

declarations  of  as  to  contents  of  will,  70. 

sanity  or  insanity  provable  by  subscribing  witness,  loi. 

intention  of,  when  shown  by  parol  evidence,  169,  170. 
Threats,  evidence  of,  when  relevant,  14. 
Time,  divisions  of,  judicially  noticed,  123,  124. 
Title,  evidence  of  facts  showing,  12. 
Title-deeds.     (See  Deed.) 
Tort,  admissions  of  defendant  in  actions  for,  effect  of,  47. 

effect  of  judgment  against  one  tort-feasor,  93,  94. 
Trade,  usages  of.     (See  Custom.) 
Treason,  two  witnesses  needed  in  trials  for,  212. 
Treaties,  when  judicially  noticed,  121. 

proof  of,  288,  289. 
Treatises,  medical,  scientific,  etc.,  as  evidence,  82. 
Trustee,  privilege  as  to  producing  documents  in  evidence,  208. 

Undue  influence  in  making  will,  21. 

when  charged,  testamentary  intention  may  be  shown  by  prior  state* 
nients,  33. 


INDEX.  329 

(The  numbers  refer  to  pages.) 

United  States,  public  documents  of,  how  provable,  143. 

Revised  Statutes  of,  provable  by  officially  printed  copy,  149. 

no  examination  of  party  before  trial  in  U.  S.  courts  in  suits  at  law, 

216. 
examiners  in  equity  in  U.  S.  courts  cannot  pass  on  objections  to  tes- 
timony, 218. 
Usage.     (See  Custom.) 
Uttering  counterfeit  money,  similar  acts  to  show  knowledge,  29. 

Value  of  property,  not  provable  by  that  of  similar  articles,  26. 

provable  by  expert  testimony,  102. 
Verdict,  as  evidence  of  public  and  general  rights,  73. 

without  judgment  thereon,  not  a  bar,  87. 

Wagers,  evidence  in  actions  upon,  249. 
War,  existence  of  judicially  noticed,  122,  124. 
Weights  and  measures,  judicially  noticed,  123. 
Wife.     (See  Husband  and  Wife. ) 
Will,  proof  of  undue  influence  in  making  of,  21,  33. 
proof  of  contents  by  testator's  declarations,  70,  71. 
publication  of,  71. 

subscribing  witness  to.     (See  Subscribing  Witness.) 
ancient,  presumption  as  to,  156. 
alterations  in,  when  presumed  to  be  made,  159. 
parol  evidence  not  admissible  to  vary,  161,  162. 

but  testator's  intention  may  be  shown  by  parol  in  cases  of  "  equiv- 
ocation," or  to  rebut  an  equity,  169,  170,  172. 
Witness,  suborning,  effect  of  as  evidence,  15,  16. 

may  testify  to  his  impression,  intent,  or  belief,  but  not  to  a  conclusion 

of  law,  127. 
when  to  be  served  with  suhpa:7iii  duces  tecum.     (See  Subpccna  duces 
tecum.') 
effect  of  his  withholding  document,  when  so  served,  136,  140,  208. 
subscribing  witness.     (See  Subscribing  Witness.) 
competency  ofivitnesses,  193-206. 

of  parties   and   persons   interested,    193.      (See  Subpccna  duces 

tecum. ) 
of  children,  194. 

of  persons  of  unsound  mind,  194. 
of  intoxicated  persons,  194. 
of  deaf  and  dumb  persons,  194,  193. 


530  INDEX. 

(The  numbers  refer  to  pages.) 

Witness  [continued). 

of  atheists,  195. 

of  infamous  persons,  195. 

infamy  how  proved,  228. 
of  defendant  in  criminal  cases,  195. 
of  husband  and  wife  in  criminal  cases,  195. 
"  "         "         civil  cases,  196. 

cannot  disclose  confidential  communications,  196,  197,  198. 
cannot  in  general  give  evidence  criminating  each  other,  209, 
210. 
of  judges,  referees,  auditors,  arbitrators,  198,  199,  274. 
of  attorney  or  counsel  in  same  case,  199. 
of  grand  and  petit  jurors,  201. 

of  lawyers,  their  agents  and  interpreters,  as  to  professional  com- 
munications, 202-205.     (.See  Attorney. ) 
of  clergymen  and  physicians,  205,  206,  275. 
privilege  of  witnesses  : 

as  to  public  affairs  or  communications  between  public  officers, 

200. 
as  to  information  concerning  the  commission  of  offences,  ioo. 
as  to  confidential  communications   between  husband  and  wife, 

196,  198. 
as  to  professional  communications  between  attorney  and  client, 
202-205.     (See  Attorney.) 
between  clergyman  and  person  confessing,  205,  206. 
between  physician  and  patient,  205,  206. 
as  to  producing  documents  or  giving  oral  evidence,  tending  to 
criminate  or  to  expose  to  a  penalty  or  forfeiture,  206,  207, 
209,  210. 
as  to  producing  documents  on  which  witness  has  a  lien,  207. 
as  to  producing  title-deeds  and  private  papers  in  evidence,  206, 

208.      (See  Sitl'J>a:na  duces  tecum.) 
no  privilege  as  to  testimony  exposing  witness  to  civil  liability, 
207. 
corroboration  ofwi^^esses,  -when  required : 

in  actions  for  breach  of  promise  of  marriage,  210,  211. 
in  bastardy  proceedings,  210,  211. 
in  cases  of  seduction  under  promise  of  marriage,  211. 
in  suits  for  divorce,  211. 

to  support  the  evidence  of  an  accomplice,  210,  2H.     (See  Ac- 
complice.) 


INDEX.  331 

(The  numbers  refer  to  pages.) 

Witness  {continued). 

to  support  the  evidence  of  a  witness yj/jz<j  in  uno,  211,  212. 

in  trials  for  perjury.  212,  213. 

in  chancery  cases,  to  support  the  bill,  213. 
number  0/ witnesses  required  : 

in  cases  of  treason,  two  or  more  required,  212. 

in  cases  of  perjury,  more  than  the  evidence  of  one  needed,  212, 
213. 

custom  may  be  proved  by  one,  13,  213. 
examination  o/ii)it?iesses  : 

witness  to  be  under  oath,  214. 

mode  of  administering  oath,  215. 

allowed  to  affirm,  when,  214,  215. 

wilful  false  testimony,  violating  oath  or  affirmation,  perjury,  214, 

215- 

witness  may  give  evidence  in  court  or  out  of  court,  216-219.    (See 

Oral  Evidence  ;  Affidavit  ;  Deposition.) 
examination  in  court,  order  of,  220. 
witnesses,  when  ordered  to  withdraw  from  the  court,  220. 

effect  of  their  refusal,  220. 
presumption  from  party's  failure  to  call  a  particular  witness,  220. 
order  of  proof  discretionary  with  trial  court,  221. 
witness's  death  or  incapacity  before  examination  is  concluded, 
generally  excludes  evidence  taken,  221,  222. 
aliter,  in  England  and  in  some  cases  in  this  country,  221, 
222. 
effect  of  death  of  &  party  before  examination  is  concluded,  222. 
evidence  of  witness,  who  is  found  to  be  incompetent  during  ex- 
amination, may  be  withdrawn,  222. 
so  incompetent  testimony,  though  admitted,   may  be  with- 
drawn, 222. 
in  some  States,  irrelevant  evidence  may  be  contradicted  by  party 

prejudiced,  224. 
examination  in  chief,  220. 

must  relate  to  facts  in  issue  or  relevant  facts,  223. 
■   leading  questions  not  generally  permitted,  224.     (See  Lead- 
ing Questions.) 
party  opening  case   must   develop  his  whole  case  in  chief, 

224. 
but  court  may  permit  evidence  in  rebuttal  which  should  have 
been  given  in  chief,  224. 


332  INDEX. 

(The  numbers  refer  to  pages.) 

Witness  {continued). 

cross-examination,  220,  221. 

to  be  confined  to  matter  testified  to  in  chief,  223. 

aliter,  in  England  and  some  American  States,  221,  223. 
leading  questions  permitted  on,  224. 

aliter,  in  some  States  when  the  cross-examination  relates 
to  new  matter,  225. 
questions  permitted  which  test  accuracy,  veracity,  or  credi- 
bility, 225. 
irrelevant  inquiries  permitted  as  to  specific  facts,  tending  to 
disgrace,  225,  277. 
extent  of  such  examination  discretionary  with  court,  225. 
witness  may  claim  privilege  of  not  answering,  225. 
but  material  questions   as  to   disgracing  facts   must  be 

answered,  225. 
in   N.    Y.  questions  as  to  witness's  being  indicted,  ar- 
rested, etc.,  not  allowable,  226. 
these  rules  apply  to  parties  as  witnesses,  226. 
answers  to  irrelevant  or  collateral  inquiries  cannot  be  con- 
tradicted, 227. 
except  when  the  answers  deny  bias,  228. 
or  in  England  and  some  States,  when  the  answers  deny 

conviction  for  crime,  227,  228. 
but  conviction  usually  provable  only  by  record,  and  not 
by  cross-examination,  228. 
answers  to  inquiries  relevant  to  the  issue  may  be  contra- 
dicted, 229. 
but  witness  must  on  cross-examination  be  given  a  chance 
to   explain    the    alleged  contradictory  statement, 
229. 
in  some  States,  this  is  not  necessary,  230. 
cross-examination  as  to  previous  statements  in  writing,  how 
made,  231,  232. 
in  this  country,  writing  exhibited  to  witness  for  authenti- 
cation, and  then  itself  read  in  evidence,  232. 
extent  of  cross-examination  of  women  in  trials  for  rape,  se- 
duction, and  in  bastardy  cases,  235,  236. 
re-examination ,  221. 

is  for  explanation  of  matters  referred  to  in  cross-examina- 
tion, 223. 
whole  conversation  may  be  brought  out,  223,  224. 


INDEX.  333 

(The  numbers  refer  to  pages.) 

Witness  {continued). 

leading  questions  not  permitted  on,  224. 
witness  allowed  to  be  recalled  for  further  examination,  221. 
impeachment  ofivitncsses  : 

party  cannot  impeach  his  own  witness,  230,  234. 

nor  opposing  witness  whom  he  makes  his  own  by  cross-ex- 
amining as  to  new  matter,  230. 
but  may  prove  facts  of  case  by  other  witnesses,  230. 
and  may  impeach  witness  whom  law  obliges  him  to  call,  230. 
party  surprised  by  his  witness  may  examine  him   as   to  his 

contradictory  statements,  231. 
in  England  and  some  States,  party  may  impeach  his  witness, 
230,  231. 
party  may  impeach  adversary's  witness,  232-234. 

by  showing  by  other  witnesses  his  bad  general  reputation, 
232. 
number  of  impeaching  witnesses   may   be   limited   by 

court,  234. 
mode  of  examining  such  witnesses,  232,  233. 
general  reputation  inquired  into,  not  specific  wrong  acts, 

233-  ■» 

in  some  States  only  reputation  for  truth  and  veracity 

provable,  233. 
in  others,  it  may  relate  to  general  moral  character,  233. 
whether  impeaching  witness  would  believe  imp>eached 
witness  on  oath,   inquired   into   in   some   States, 
233- 
by  showing  his  former  statements  contradicting  his  testimony, 

229.     (See  Cross-examination,  supra.) 
party  impeached  like  other  witnesses,  233. 
impeaching  witness  may  himself  be  cross-e.xamined  or  im- 
peached, 233,  234. 
impeached  witness  may  be  sustained  by  party  calling  :him, 
234.  235. 
by  showing  by  other  witnesses  his  good  general  repu- 
tation, 234. 
to  rebut  evidence  of  his  bad  reputation,  234. 
or  to  rebut  evidence  of  his  conviction  for  crime, 

234- 
or   to  rebut   evidence  tending   to  charge   him  with 
crime  or  moral  turpitude,  234. 


334  INDEX. 

(The  numbers  refer  to  pages.) 

Witness  [continued). 

but  he  cannot  be  so  sustained  because  the  testimony  of 
other  witnesses  is  contrary  to  his,  234. 
or  when  he  is  impeached  by  proof  of  inconsistent 
statements,  234. 
aliter,  in  some  States,  234. 
witness  cannot  be  supported  by  proving  that  he  made 
former  statements  similar  to  his  testimony,  235. 
unless  fabrication  is  charged  against  him,   and  he 

made  them  before  the  motive  existed,  235. 
but  in  some  States,  such  evidence  is  received  to  re- 
but evidence  of  inconsistent  statements,  235. 
refreshing  memory  of  witnesses.      (See  Refreshing  Memory.) 
Women,   offences   against,  evidence  competent  on  trials  for,  235,  236. 

(See  Rape  ;  Seduction  ;  Adultery  ;  Bastardy.) 
Words,  defective  or  ambiguous  in  documents,  evidence  to  explain,  167- 
169. 

THE  END. 


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